What is the difference between a general and a special power of attorney?

Question

José Manuel Alburquerque · Accepted Answer

A general power of attorney covers all the affairs of the person who grants it and a special one covers only one or more specific matters, such as selling a particular flat or accepting an inheritance. But what matters more than that distinction is what the power of attorney actually permits. A power of attorney drafted in general terms is only valid for acts of management, for example collecting rent, paying bills or dealing with routine banking. To sell, mortgage, make a gift or take out a loan, the power of attorney must say so expressly, whether it is general or special. What matters each one covers With a power of attorney, one person, called the principal (“poderdante”), authorises another, the attorney (“apoderado”), to act on their behalf. What the attorney does within the limits of the power of attorney binds the principal as if the principal had done it personally. Depending on the matters it covers, a power of attorney can be of two kinds: General, if it covers all the principal's affairs. It is convenient, because with a single document the attorney can deal with everything, but it leaves a great deal in the attorney's hands. Special, if it is granted for one or more particular matters, such as selling a specific flat, accepting an inheritance or signing a mortgage. It limits the risk and comes to an end once the task has been carried out. It is a classification from the Spanish Civil Code (“Código civil”) that is also used in Catalonia. What it allows the attorney to do What really determines what the attorney can do is the powers the document confers. The “Código Civil de Cataluña”, the Catalan Civil Code, says that a person acting on someone else's instructions can only carry out acts of ordinary administration, unless expressly authorised to carry out others. In practice, this means the following: Without express powers, the attorney can collect rent, pay bills and expenses, deal with routine banking or handle paperwork with the public authorities. To sell, buy, mortgage, make a gift, waive a right, take out a loan or reach an agreement to avoid or end a lawsuit, the power of attorney must expressly name that power. For anything in between, such as commissioning major building work or letting for many years, it is also advisable for the power of attorney to say so expressly, because the Catalan code speaks of “ordinary” administration. That is why general powers of attorney that include powers of disposal are common, these being the powers that allow assets to be sold or encumbered, for example with a mortgage. They are general because they cover all matters, but they list the important powers one by one. If the attorney does something the power of attorney does not allow, in principle the principal is not bound, unless they later approve it, which is called ratifying it. In most of the rest of Spain, the Spanish Civil Code also requires the powers to sell or mortgage to be stated expressly. Which one to choose For a specific transaction, such as selling a flat or accepting an inheritance from another city, the safest option is a special power of attorney, with the conditions you require, for example a minimum price. A general power of attorney with powers of disposal should only be given to someone you trust completely, because it allows them to sell or mortgage everything you own. For acts signed before a notary, such as the deed of sale of a flat, the power of attorney must also be notarial. For some matters a written authorisation is enough, such as for voting at the general meeting of the owners' association (the “comunidad de propietarios”). A power of attorney can be revoked at any time, with some exceptions.