How to issue a power of attorney: the basics and legal subtleties

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

The life hacker figured out what powers of attorney are, how to draw up them correctly and whether you always need to go to a notary.

What is a power of attorney

A power of attorney is a document with which you can entrust someone with the performance of legally significant actions.

A power of attorney is a written authorization issued by one person to another person or to other persons for representation before third parties.

Article 185 of the Civil Code of the Russian Federation

The person who issues the power of attorney is the trustee or the person represented. It can be a fully capable natural person or a legal person with legal capacity (several persons).

Parents (legal representatives) draw up a power of attorney on behalf of young children. Teenagers from 14 to 18 years old can issue a power of attorney themselves, but within the competence that they are endowed with at this age.

The one to whom it is issued is a confidant or representative. It can be any adult capable citizen (citizens), as well as an officially registered company (companies).

Issuance of a power of attorney is a unilateral transaction. The consent of the representative is not required for its commission. But he may not accept the power of attorney and refuse it at any time.

The actions of a representative are always actions on behalf of the principal, but in relation to third parties. He cannot make a deal in his favor or in favor of his other clients.

Term of power of attorney

When drawing up a power of attorney, the most important requisite is the date.

A power of attorney that does not indicate the date of its execution is void.

Article 186 of the Civil Code of the Russian Federation

It is impossible to count the validity period of a power of attorney without a date. Previously, a power of attorney could be issued for a maximum of three years. Now this restriction has been removed.

If the text does not indicate the validity period of the power of attorney, then by default it remains in effect for a year (Article 186 of the Civil Code of the Russian Federation).

General rules for drawing up powers of attorney

A power of attorney is always a written document. For some, uniform forms have even been developed. For example, for a power of attorney to receive material values. In other cases, the power of attorney is simply written by hand or printed on a computer.

In this case, there are three required details.

1. Date of preparation. As already noted, without it, it is impossible to establish the validity period of the power of attorney. It can be indicated in the text by a number or, as notaries do, in words.
2. Information about the principal and the representative. If a power of attorney is made between individuals, this information is usually limited to full name, dates of birth and passport data. But the absence or incompleteness of the latter is not the basis for the invalidity of the power of attorney.
3. Principal's signature. The power of attorney is null and void without a stroke of the person who issued it. If a person, due to a physical handicap or illiteracy, cannot sign himself, they resort to the services of a batter. A seal is also required for legal entities.

Additional information that can be specified in the power of attorney:

1. Place of compilation.
2. The period for which it is issued.
3. Representative powers.

Although it is not necessary to disclose the powers of a representative in detail, it is highly desirable. This can save you from future litigation. Especially if you delegate the manipulation of your property to someone.

Do not hesitate to describe in detail the subject of the transaction (area, cadastral number, address, etc.) and give the representative specific instructions (for example, sell an apartment for an amount no less than such and such).

You can also go from the opposite direction and limit the representative to a set of transactions that he can perform (for example, any other than collateral), or set a limit on the amount of the transaction (for example, if the contract exceeds a million rubles, the representative will not be able to conclude it by power of attorney).

What are powers of attorney

Depending on the scope of the representative's powers, lawyers distinguish three types of powers of attorney.

1. One-time. Issued for one specific action. For example, for the sale of a land plot.
2. Special. Issued for performing a number of similar actions within a certain period of time. An example is a power of attorney to represent interests in court.
3. General (general). Issued for performing various actions, including the acquisition or alienation of property and the signing of documents. Such powers of attorney, for example, are received from the company by the heads of its branches.

Proof of power of attorney

Also, powers of attorney are divided into simple written and notarized ones. According to the law, powers of attorney must be notarized for transactions that require a notarial form and state registration (article 185.1 of the Civil Code of the Russian Federation). For example:

1. Real estate purchase and sale agreement.
2. Mortgage agreement.
3. Pledge agreement.
4. Marriage contract.
5. Agreement on the payment of alimony and so on.

If the transaction does not require the intervention of a notary, then the transfer of authority can be done using a conventional handwritten power of attorney. Therefore, if, for example, a notarized power of attorney is required from you so that the grandmother can pick up the child from the kindergarten, it is illegal.

There are also categories of powers of attorney that are equated to notarial ones. For example, issued to the military and certified by the leadership of the military unit. A complete list of such powers of attorney is specified in article 185.1 of the Civil Code of the Russian Federation.

On the Internet, you can easily find a sample of any kind of power of attorney. There are even power of attorney constructors.

Let us consider the features of drawing up the most typical ones.

How to issue a power of attorney for a child

This power of attorney (or rather, consent to leave) will be needed if you plan to send your children to the sea with your grandparents.

Formally, such a document is required only in case of an overseas trip.

If a minor citizen of the Russian Federation leaves the Russian Federation unaccompanied by his parents, adoptive parents, guardians or trustees, he must have with him, in addition to his passport, a notarized consent of the named persons to leave the minor citizen of the Russian Federation indicating the time of departure and the state (states), which (which) he intends to visit.

Article 20 of the Federal Law of 15.08.1996 No. 114-FZ "On the procedure for leaving the Russian Federation and entering the Russian Federation"

But in practice, such permission is often requested on trains and airports, even when traveling in Russia.

In the power of attorney for a trip with a child, you must indicate the names and passport details of the parents and accompanying persons, as well as the full name and date of birth of the minor and the number of his identity document (birth certificate or passport). You can write where and how long the child is going. Well, do not forget about two other required details: the date of the power of attorney and the signature of the principal.

How to issue a power of attorney for a car

Power of attorney for driving a car was canceled in 2012. Now the driver just fits into the insurance. And traffic police officers should not require other documents certifying the right to use the vehicle.

This is true when it comes to driving a car. But there are cases when you cannot do without a power of attorney.

Without a power of attorney, you cannot pick up the car from the impoundment parking lot, get a duplicate of the license plate, remove it from registration, issue MTPL and undergo technical inspection.

In addition, to travel abroad, you need a notarized power of attorney with a direct indication that the representative can leave the Russian Federation in this car.

When drawing up a power of attorney for a car, in addition to the usual details, it is recommended to indicate the make and model of the car, the year of its manufacture, identification number, vehicle registration details.

How to issue a power of attorney to the bank

Many banking transactions are impossible without the signature of the client or his authorized representative. But this does not mean that in order to entrust someone with your banking business, you need to go to a notary.

The law allows you to issue a power of attorney to perform banking operations directly at the branch of a credit institution. To do this, you need to come to your bank with a passport and ask for a form for drawing up a power of attorney (as a rule, each bank has its own form of this document).

In addition to the required details, it is recommended to indicate in the text of the power of attorney what operations the representative can perform. For example, replenish a deposit, use a safe deposit box or make transactions on an account for an amount not exceeding 100,000 rubles.

A written authorization for a representative of a citizen to receive his deposit in a bank, to deposit funds to his account on a deposit, to perform transactions on his bank account, including receiving funds from his bank account, as well as to receive correspondence addressed to him in a communications organization may be submitted directly to the bank or liaison office.

Part 3 of Article 185 of the Civil Code of the Russian Federation

According to this regulation, the same rules apply to postal correspondence. Read more about how to issue a power of attorney for Russian Post here.

How to issue a power of attorney to receive a pension

Article 185.1 of the Civil Code of the Russian Federation says: "A power of attorney for receiving salaries or other payments arising from labor relations (pensions, bonuses, royalties) can be certified by the head of the institution where the person works."

In other words, if you officially work in an organization and plan to leave somewhere, you can approach the management and ask to certify the power of attorney to receive a salary or pension.

Everything is a little more complicated when it comes to the so-called non-working pensioners and disabled people receiving social pensions.

In the first case, in accordance with the provisions of the Civil Code and Federal Law No. 173 "On Labor Pensions in the Russian Federation", the power of attorney will have to be notarized. In the second, the power of attorney is drawn up through the local branch of the Pension Fund.

Housing and communal organizations, post offices and banks cannot certify powers of attorney to receive pensions.

It is possible to endorse a power of attorney for receiving a pension only in a medical, social or correctional institution, if a person is there permanently.

Cancellation and termination of a power of attorney

The principal at any time has the right to revoke the power of attorney, and the representative has the right to refuse it (Article 188 of the Civil Code of the Russian Federation). In this case, the person who draws up the document is obliged to notify the representative and third parties of its cancellation.

To cancel a simple written power of attorney, it is enough to submit a statement made in the same form. To cancel a notarized power of attorney, you need a statement, also certified by a notary.

You can check whether a particular power of attorney is valid using a special service of the Federal Notary Chamber.

Also, the power of attorney is terminated in the event of:

1. The expiration of the term specified in it or in the law.
2. Death of the principal or representative (as well as the termination of the activity of the legal entity acting in this role).
3. Recognition of the principal or representative as incapacitated (partially capable or missing), as well as the conduct of such a bankruptcy procedure in respect of them, in which the person concerned loses the right to independently issue powers of attorney.