Is a notarial power of attorney valid after the person's death?

Question

José Manuel Alburquerque · Accepted Answer

No. When the person who granted it dies, the power of attorney comes to an end, even if nobody has revoked it and even if the attorney, the person who acted on their behalf, keeps the copy. From that moment, decisions about the assets are taken by the heirs and, if the will appoints one, by the executor, in the matters entrusted to them. The exceptions are what the attorney did without knowing that the person had died and whatever must be finished because abruptly leaving it half done would put the interests at stake at risk. Why it ends The “Código Civil de Cataluña”, the Catalan Civil Code, says that the task of acting on someone else's behalf ends on that person's death or if a court declares them dead. It also ends if the attorney dies. In that case, the attorney's heirs must inform the person who granted the power. The same applies to a lasting power of attorney (“poder preventivo”), the one given for when a person can no longer manage their own affairs, which continues even if capacity is lost, but not after death. In most of the rest of Spain, the Spanish Civil Code (“Código civil”) says the same. So, after the death, the attorney can no longer use the power of attorney to sell a flat, withdraw money from the bank or sign contracts on behalf of the deceased. As soon as it learns of the death, the bank freezes the accounts and the authorised signatories can no longer use them. For someone to deal with a person's affairs after their death, what works is the will, for example by appointing an executor, the person responsible for carrying it out. What remains valid The law protects what was done in good faith and what could not be left half done: What the attorney did before learning of the death is valid as against the heirs. Anyone who contracted with the attorney in good faith, unaware of the death, is in principle protected. The heirs may, where appropriate, bring a claim against the attorney. What the attorney had already started must be finished if abruptly stopping it would put the interests at stake at risk, for example a matter with a deadline about to expire. The same applies if the power of attorney had been granted as irrevocable. But the attorney cannot start anything new. What the attorney cannot do is use the power of attorney knowing that the person has died. If whoever contracted with the attorney also knew or ought to have known this, what was done does not bind the heirs. In addition, the attorney is liable to them for any damage. What the heirs should do Inform the attorney, the banks and the people who dealt with the attorney of the death, in writing and as soon as possible. The law requires the heirs to notify the attorney. Until the death is known, what is done with third parties acting in good faith may be valid. Ask the attorney to return the copy of the power of attorney. Ask the attorney to account for their management, that is, to explain and justify what they did with the power of attorney. The attorney must also hand over whatever was received through that management. If the attorney used the power after the death or fails to account, a claim can be brought in court, after first trying to reach an agreement, as the law generally requires.