A few days ago, on the occasion of the signing of a simple power of attorney, and when asked what the specific purpose of that power was, the following case was raised, which is the inspiration for these brief lines.
A mother lives separately from her partner and has a minor child under her care, recognized by both. The mother finds that in order to enroll the child in public schools, they ask her for the father's signature, but since there is not excessive collaboration on his part, she is forced to go to private centers, which are not subsidized, and suppose a great financial waste.
With the intention of being able to put an end to this situation, he files a lawsuit requesting that the guardianship and custody of the minor be attributed to him, without deprivation of the parental authority of the other parent. What happens is that the father, upon receiving a judicial communication, has a somewhat exaggerated reaction, whose specific terms I prefer to omit.
I have always considered the judicialization of family relations a drama, since judges never provide justice, and any decision they may adopt will not have the ability to be fully satisfactory to anyone. The agreement of the parties becomes, in my opinion, the only reasonable solution in the field of family law.
THE USEFULNESS OF THESE POWERS
The powers over the exercise of parental authority can constitute a self-composition tool in the family environment, to prevent and/or avoid conflict situations. However, it is not the only field in which it can be useful, and it can become essential in those cases where parents, for work reasons, must move to another town or country, leaving their minor children in the care of a relative. , or they cannot attend to the child, due to a deprivation of liberty.
With this we have that we could differentiate two types of powers in the field of parental authority.
a.- The one that both parents give to a third party so that they have a title that enables and legitimizes them to make decisions on their behalf, and aimed at caring for their children.
b.- The one that one of the parents gives to the other, so that it is exclusively, the one that adopts all or some of the decisions to which the power refers.
THE LITTLE LEGAL REGULATION
The regulations that regulate the matter are scarce and are specified in Article 156 CC, and obviously we must take into account the regulations that regulate the mandate contract in Articles 1709 CC and following.
Article 156 CC in the part that interests us tells us:
Parental authority will be exercised jointly by both parents or by one alone with the express or tacit consent of the other.
In the absence or absence, disability or impossibility of one of the parents, parental authority will be exercised exclusively by the other.
If the parents live separately, parental authority will be exercised by the person with whom the child lives. However, the Judge, at the well-founded request of the other parent, may, in the interest of the child, grant the applicant parental authority to exercise it jointly with the other parent or distribute between the father and the mother the functions inherent to its exercise.
That is, the general rule is joint action of both parents, and the exception is individual exercise, in the cases of absence, incapacity or impossibility of one of the parents, or in the cases in which the judge so determines, as a consequence of the rupture of the coexistence of the parents
But it is true that the Civil Code does not regulate the possibility that the parents by mutual agreement regulate the exercise of parental authority or that they delegate the exercise of the same to a third party.
However, denying this possibility is really putting doors to the field, because it must be taken into account or reasoned, what are the limits of these possible delegations, which in my opinion must be specified in the following points:
a.- They cannot constitute a waiver of the obligations of the parents towards the children, since no parent can voluntarily renounce to be one. It is true that a judge can deprive a parent of parental authority, but not of parental status, unless it is exercised and resolved on a filiation action.
On the other hand, if the power of attorney covered some type of resignation, consequences and responsibilities, even criminal, could result as a consequence of the breach of the legal duties of protection and assistance that parents have over their children.
The consequence that can be drawn from this is that they must have a temporary character.
b.- The subordination of the authorization granted, which in no case implies the appointment of a guardian, to the interest of the minor, whose protection is entrusted to the competent public entity of the Autonomous Community, to whom the guardianship would correspond by ministry of Law in case of helplessness
c.- It cannot be unalterable, so it can be revoked at any time.
THE FORM OF THE ATTRIBUTION OR DISTRIBUTION OF THE POWERS OF PARENTAL AUTHORITY
The form of distribution of the functions or the attribution of the same to a third party is formally executed through the granting of a power of attorney. But I would point out the following details or recommendations from those powers:
a.- Power is always a legitimizing title, but it is protected by another type of relationship or agreement. This type of relationship always exists, even if it is in a verbal way. However, in the field of parental authority, as happens with the so-called preventive powers, it is highly advisable that this relationship that justifies the power, be reflected in writing, through a contract (of mandate) in which they are determined the purpose and conditions of the delegation of powers, which will be reserved between the parties, so that it is only the power of attorney that circulates.
Through this document it will be possible to demand, for example, a correct rendering of accounts of all the actions, if it has been determined how it should be carried out, both in terms of deadlines and form.
b.- Not being essential, I believe it highly advisable that the power of attorney be granted by the person delegating (one or both parents) and by the person receiving the delegation (the other parent or a third party), so that their acceptance is conclusively recorded.
THE CONTENT OF THESE POWERS
Within the limits that we have indicated, the content of the powers can be anyone.
It can have a very broad specified content that authorization is granted to x, so that she can take care of her son*a Y, living together and taking responsibility for them while the appearing party is not in a position to take care of the minor.
Or the delegated powers could be detailed, with the precision considered.
In Leganés on July 8, 2018.