According to the statistics of notarial documents, the most frequent document signed in Spanish notaries are powers of attorney. It is a document in which one person authorizes another to carry out certain acts, to the extent desired.
Special power and general power or to ruin
The power, in its most restricted version, would be that which authorizes a person to carry out a sale, with a determined price, with a determined buyer and on a determined property; but power in its broadest version would be what is commonly called power to ruin, in which another person is delegated to carry out all those acts that are possible to be delegated, excluding only those that, due to being very personal, cannot be carried out through another. The most characteristic example of an act that cannot be carried out by means of power is the will.
In any case, power is an act of trust, due to the special significance it can have, and for this reason it is only advisable to give it to people who we presume will not fail us.
The power of attorney is an act, which can be configured for a specific duration or without being subject to a term, so that it would be in force as long as the power of attorney is not revoked.
What is it and how is the revocation done?
Through the revocation, the person who gave the power declares that it ceases to have effects.
The revocation is usually done in a public deed, which is notified by the Notary before whom the revocation has been granted, to the Notary before whom the power of attorney was granted, so that in the event that a new copy of the power, record that it has been revoked.
On the other hand, it is also common that once the revocation is granted, the revocation is notarized to the attorney, requesting that he deliver the copy of the power of attorney, so that he can no longer exercise it.
And it may be convenient to make the revocation known to certain people before whom power is usually exercised, such as banks or people with whom there is a continuing relationship.
Power of attorney as an act of trust and ex lege revocation
As we have pointed out, power is an act of trust. For this reason, the law also establishes a series of assumptions, which, assuming the loss of the relationship of trust on which the power is based, configures them as grounds for revocation. The most frequent cases are the extinction of the domestic partnership and the admission of the claim for annulment or divorce, in the case of powers between spouses.
Once the power of attorney is extinguished, and the agent being aware of the revocation, the power of attorney may not continue to be exercised, and if it does so, it could incur liability. If it were still used, if the person who contracted with the attorney-in-fact acted in good faith, the act carried out would be valid, without prejudice to the obligation of the attorney-in-fact to indemnify the damages caused to the principal and the other responsibilities that could be incurred, including the penalty.
Why should the original of the power of attorney be shown to the Notary?
When you intend to exercise a power of attorney before a notary, you must show the authorized copy of the power of attorney document (what is commonly called the original), in which there should be no notice of revocation.
There is currently no way to prove the validity of the powers of attorney since the notarial initiative to create a registry of revocation of powers, through a reform of the notarial regulations, was declared null by a sentence of the supreme court, for a matter lack of legal support for the initiative. Therefore, if the Notary is not shown a copy of the power of attorney, he must deny his functions.
In those cases in which the cause of extinction of the powers is by separation and divorce, there will not be a deed of revocation, but if the agent wanted to exercise the power (committing fraud and a crime) he must state the validity of his powers and declare that the marriage continues.
In any case, in these cases, it is very difficult, if not impossible, for the notary to verify the validity of the powers, except in those cases in which he knows the people and knows of their separation and divorce, in which case the Notary, if knowing the cause of revocation allows the exercise of power, your responsibility could be extremely burdensome.