With the development of civil relations, there is a parallel development of the institution of representation. Nowadays, few are unfamiliar with a document called “power of attorney”. What is the power of attorney from the point of view of the legislation of Russia, is considered in this article.
The concept
A power of attorney to represent the interests of a legal entity or an individual is a unilateral transaction, that is, in order for it to be valid, the will of one person or organization that will transfer powers to another person (attorney) is enough. Moreover, such a declaration of will, of course, must correspond to the letter of the law. The content of the will of the principal is obliged to confirm his intention and desire to transfer the authority to perform any actions to the attorney. The attorney must perform these actions only on behalf of his principal and solely in his interests. Such actions can be implemented through the conclusion of various transactions or the commission of other legal actions.
Document submission
In practice, the document under consideration is transmitted by the principal directly to the attorney or representative. At the same time, since this transaction is considered unilateral and the participation of a representative is not required for its completion, the person transferring the authority can transfer this document to the person with whom the transaction will subsequently be concluded or to one who will be required to certify the authority of the attorney. For example, when concluding a sale, the seller who completed the power of attorney for someone has the right to give it to the buyer so that he makes sure the legality of the transfer of authority. If other powers are indicated in this document, for example, registration with an authorized body, then the buyer will be able to submit this document to the registering organization.
Requisites
A power of attorney is, first of all, a document that confirms not only the authority of the representative to third parties, but also the content of the authority given to him. In addition, counterparties are certified by this document in the term of such powers. That is, in the period for which the power of attorney is issued. What are the details of the power of attorney? Legislation directly refers to the document itself - the “power of attorney”, as well as the full personal data of the principal and the attorney, their full name, number and place of preparation of the document, the signature of the principal and, of course, the very contents of the transferred powers.
Document varieties
The power of attorney can be classified into three types, based on its content:
- one-time;
- special;
- general.
The first is issued for the commission of only a certain action. For example, receiving a pension at a bank in January 2016. After performing this action, that is, after the representative receives money from the bank for the specified month, the power of attorney will be considered terminated. Using it again will no longer be possible.
A special power of attorney for documents, a sample of which can be seen in any notary's office, as well as a power of attorney for other powers is drawn up by an attorney to perform several specific actions. For this, he is given a certain period. There are many cases in which such a document is issued. This may be the completion of a purchase and sale transaction with subsequent registration, as well as with the next transfer of the purchased property for rent, etc. Also, by special power of attorney, authorities are transferred to conduct the inheritance business, obtain inheritance property, register this property and more.
The last type of the document under consideration includes the transfer of all the powers of the represented person to conclude transactions or other legal actions. Typically, the issuance of a power of attorney of this type is carried out by legal entities to their branches (represented by the head of the branch), commercial representatives, trust manager. Among citizens, the issuance of general powers of attorney for a vehicle is common. According to it, the attorney can not only drive the car, but also alienate it (sell it, give it away), and also perform any other actions not prohibited by law.
Form of power of attorney
The document under discussion must be duly executed. Its form can be not only in the form of a separate document completed in writing, but also a power of attorney can be included in the contract or other agreement concluded between the attorney and his principal (for example, a trust management agreement for property).
In any case, the power of attorney needs a written form, and in some cases established by law, a notarized power of attorney or certified by other authorized persons is needed. In addition, the document must necessarily contain the signature of the submitted. If the principal is a legal entity, then, accordingly, such a signature is affixed by an employee authorized by the constituent documents. Usually this person is the head (director, general director, president, etc.). Additionally, in order to verify the signature of this official, his visa needs to be affixed with the seal of the organization. The power of attorney is registered by a notary or authorized persons in a special register.
Special requirements
In some cases, special powers may be required for powers of attorney and their details. So, if an organization based on municipal or state ownership wishes to issue a power of attorney to represent the interests of a legal entity to a third party to whom it will delegate the authority to receive money and other tangible assets, then in addition to the signature of the head and seal of the organization, the signature of the chief accountant must be added.
This requirement is regulated by the Law “On Accounting”, which determines that if there is no visa for the chief accountant of the organization, it is forbidden to accept any credit or financial obligations, settlement, monetary documents. The absence of such a signature means the invalidity of the document. Particular attention should be paid to the fact that this law applies to all legal entities located in Russia. Such a document is called a material power of attorney.
Certificate of authority in financial organizations
The normative act regulating civil relations established that confirmation of the rights to use and dispose of money that is in the account with a banking organization can be carried out using analogues of a handwritten signature. Also, such confirmation can be obtained using all kinds of codes, passwords, and other means that will certify that such an order has been transmitted by a person with the appropriate authority. However, this form must be established in the bank account management agreement concluded between the client-trust and the bank.
Term
The norm of civil law states that a power of attorney without indicating the date, month and year of its issuance is void. Moreover, the recognition of such a document, drawn up in an improper manner, invalid is possible both by the judiciary itself and by any person whose rights and interests are affected.
The nullity of the document implies that not only the legal relations that arose between the attorney and the representative, but also all the results of the representative’s actions will be declared invalid. In other words, all transactions concluded by the attorney in the interests of the principal, as well as other legal actions that contributed to the emergence, amendment or termination of legal relations between the principal and the third party, will be considered invalid from the moment of their completion.
In addition to the legal result of the nullity of the power of attorney, the parties (the represented and the third party) will return to their original position, consisting in transferring to each other all the transactions received by the principal and the attorney and the third party in relation to the representative. In those situations when it is impossible to return received in kind (for example, services received, work performed), compensation and reimbursement in cash are made.
Entrusted
The legislation provides for the right of the principal to transfer its authority not only to its representative, but also through it to a third party. This third party may obtain such powers by drawing up a power of attorney in the order of submission. In this case, certain requirements must be met. Such a power of attorney will be signed by an attorney who is endowed with the relevant powers by the principal. In this document, the representative indicates the possibility of an attorney to transfer the authority received to any third parties. This is a prerequisite. In the case when the representative’s right to transfer such powers is not indicated in the document, it is impossible to transfer.
The legislator provides for the duty of a representative to notify his principal that he has been delegated authority to a third party. In addition, the attorney is also required to provide other information about the person to whom these rights are transferred, including those of interest to the represented. This is due to the fact that the relationship between the representative and the person represented is personal. In this case, only a notarized power of attorney is valid in the order of transfer.
Termination
Civil law provides for the possibility of canceling a power of attorney, as well as the refusal of it. As a result, there is a cessation of absolutely all legal relations, which occurs either from the will of the represented, or from the will of the representative. Notaries can certify such expressions of will. The power of attorney may be revoked at any time. The restriction of such a right shall be recognized as invalid by law. Another reason for the termination of this document is the expiration of the period for which the power of attorney was issued.
What is a termination of a power of attorney? Effects
According to the law, the document under consideration will be canceled after the submitted person notifies about the cancellation of his attorney. A similar responsibility rests with the successor of the principal. In addition, the cancellation of this document must also be notified to third parties who are known to the represented. Civil law established that when a document is canceled, the attorney must immediately return the power of attorney to the person represented. What is a power of attorney from now on? From the moment the power of attorney is terminated, all actions on it will be declared invalid.