Power of attorney: know your rights and obligations when signing this document

Burden of proof always lies with the attorney who must prove that he did not make mistakes; principal must claim losses in court.

Burden of proof always lies with the attorney who must prove that he did not make mistakes; principal must claim losses in court.

More than a favor for the person who gave the power of attorney, signing a document of this type and becoming someone’s attorney involves rights and obligations that you must be aware of to avoid further problems.

A power of attorney is nothing more than a mandate, through which the principal establishes exactly the tasks he expects to be performed by the attorney. Precisely for this reason, it is the responsibility of the attorney-in-fact to render accounts to the principal whenever requested, as well as to fulfill the established with loyalty and commitment.

Burden of proof is on the prosecutor

Loyalty means that if you have received a power of attorney to buy a property in someone else’s name, you will absolutely not be able to buy it for yourself, even if you found the conditions offered to be excellent and decided to take advantage of them, as this implies not fulfilling the aspect related to loyalty in the execution of the task.

In this case, it is possible that the principal will claim compensation for the losses it may have suffered because you did not carry out your tasks as established in the power of attorney.

Incidentally, it is important to emphasize that whenever there is doubt as to whether or not the attorney-in-fact was at fault for any damage suffered by the principal, it is up to the attorney-in-fact to prove that he was not at fault. In turn, the principal just needs to enter that there was damage before the Justice.

checking powers

A lot of people don’t know, but not conferring the powers given to a prosecutor, letting him end up abusing his powers going beyond what he could do, will also have to take risks.

Exactly for this reason, it is essential to always check the content of a power of attorney when it is presented to you. The attorney-in-fact is obliged to always present the power of attorney to third parties so that they can confer the powers granted to him.

Right to withhold goods and receive in advance

In turn, the attorney-in-fact has the right to receive in advance the amounts of expenses that he will incur to carry out what has been requested of him. In this case, the attorney-in-fact may even refuse to begin exercising his mandate if he does not receive these amounts in advance, without any personal prejudice.

Likewise, the attorney-in-fact may claim compensation from the power of attorney if he can prove that he incurred damage in executing what was asked of him. If the principal refuses to reimburse the attorney-in-fact for the expenses incurred in executing the power of attorney, the attorney-in-fact will have the right to refuse to return any property of the principal that is in his possession until payment is made.

If the parties have agreed that the attorney-in-fact would be entitled to an honorarium in the exercise of his function, then the power of attorney will be seen as an onerous mandate. In this case, as long as the attorney-in-fact has committed himself to carrying out his duties, even if he has not achieved his objectives, he will be entitled to these fees.

When the prosecutor resigns

If you are unable or just prevented from complying with what was established in the power of attorney, it is possible to resign or simply transfer your powers to someone else.

As long as your decision to waive does not entail losses for the principal, it is always possible to waive a power of attorney. In this case, you will have to give the principal time to find a replacement without risk or damage to himself.

On the other hand, if the resignation takes place at a time considered inopportune, such as on the eve of closing a deal, the attorney-in-fact may have to answer for the damage caused to the principal. But if the attorney-in-fact succeeds in proving that if he had not resigned he would be incurring serious and intolerable damage himself, then he will not have to bear the damages to the principal.

The transfer of powers from the wanted person to another person can be done in whole or in part. In the first case the transfer is considered “without reservation of powers”, while in the second it is said that there was sub-establishment of powers.

In this case the proxy cannot be held responsible for the mistakes of his substitute, unless the principal proves that the person to whom he transferred the powers was not responsible. To avoid this type of situation, it is recommended that the attorney-in-fact request that a clause be included in the power of attorney authorizing him to sub-establish his powers. Only in this way will you be able to avoid having to answer for damages caused by your substitute in case of transfer.