A power of attorney is a declaration by which a person appoints another person as his or her representative. The person granting the power of attorney is referred to as the grantor of the power of attorney. The person named as the representative in the power of attorney is called the power of attorney holder. Representation in the context of a power of attorney means that the proxy holder is authorized to act on behalf of the principal. The proxy holder is therefore authorized to make decisions and perform certain actions in place of the principal, for example.
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In addition to the above powers of attorney, there are also powers of attorney with legally typified content. These powers of attorney include, among others, powers of attorney to act and the power of procuration.
The formal rules for a power of attorney
For powers of attorney applies in principle the formal freedom. Freedom of form means that a power of attorney is not bound to any particular form. It does not necessarily have to be declared in writing, but can also become effective if it was granted orally or by conclusive action. In principle, this also applies to powers of attorney declared for legal transactions with special formal requirements. Such legal transactions include, for example, the purchase of real estate. In order for a contract of sale for a property to become effective, the law requires that it be notarized by a notary public. If the buyer wants to be represented at the notary appointment, it is sufficient if the representative can show a simple power of attorney. This power of attorney then enables the agent to legally sign the sales contract. Unlike the purchase contract, the power of attorney itself does not have to be notarized. For some time now, however, there has been a trend in case law to no longer separate the form of the legal transaction from the form of the corresponding power of attorney in order to protect the grantor of the power of attorney. The written form, i.e. a written power of attorney with a handwritten signature, is also generally required in connection with medical interventions, deprivation of liberty and representation in court.
The scope and validity of a power of attorney
What actions the proxy holder may perform is determined by the content of the power of attorney. However, when interpreting the wording, the so-called principle of trust applies. Accordingly, the declarations must be interpreted as they are to be understood in good faith, i.e. as the grantor of the power of attorney most probably meant them.
If the power of attorney is not irrevocable, the principal can revoke it at any time. In the same way, the power of attorney holder can revoke a power of attorney granted to him at any time. How long a power of attorney is otherwise valid depends again on the formulations in the power of attorney. A power of attorney can be granted for a certain period of time or for an unlimited period of time. If the person granting the power of attorney becomes incapable of making decisions and entering into legal transactions, or if he dies, a power of attorney expires only if this is expressly stated so in the declaration. On the other hand, the power of attorney automatically loses its validity upon the death of the proxy holder.
Sample form for a power of attorney, mediation power of attorney
The grantor of the power of attorney can determine by the wording in the power of attorney to what extent the proxy holder is to represent him/her. For example, instead of a closing power of attorney, he may give him only an agency power of attorney. A power of attorney authorizes the holder of the power of attorney to enter into the legal transactions specified in the power of attorney. In contrast to this, in the case of a mediation power of attorney, he may only act in an intermediary capacity, i.e. initiate a legal transaction by, for example, carrying out inspections, inspecting files, obtaining offers or conducting negotiations. The conclusion of the legal transaction is then carried out by the proxy holder himself.
Form for a power of attorney
Mediation power of attorney
I hereby grant
____________ Name, address, date of birth ____________
Mr./Mrs
____________ Name, address, date of birth ____________
Mediation power for the following legal transaction/s:
____________
____________
____________
The power of attorney holder is authorized to perform all acts and make and receive declarations required in connection with the initiation of the (respective) legal transaction.
The power of attorney is granted for an unlimited period of time / for the period ____________.
Place, date, signature of the proxy holder
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