Power of attorney for property and financial affairs

General power of attorney provisions are to be found in art. 95-109 of the Civil Code (Kodeks cywilny - CC).
A power of attorney legitimacy can only come from a declaration of intent submitted by the principal.

Cases of representation which are not based on such a declaration do not fall under “power of attorney” category.

Swietlana used the services of a person claiming to be a lawyer. Yet, this person did not have a document with Swietlana’s signature necessary in proceedings before the Department of Foreigners’ Affairs of Mazowieckie Province Office authorising him to act as a representative. Such representation cannot be called a power of attorney.

Principal	Attorney-in- fact
May be either a natural or a legal person; May give a power of attorney only to enter into legal transactions that they themselves can enter. This means that the principal has to have such capacity to enter into legal transactions as the one the attorney-in-fact is to enter.	May only be a natural person; Must have at least a limited capacity to enter into legal transactions. Therefore, attorneys-in-fact can also be minors who have attained thirteen years of age and persons partially legally incapacitated (art. 15 of the CC).

A power of attorney is not a contract between the attorney-in-fact and the principal, but a one-sided declaration of intent by the principal which does not create an obligation on the part of the attorney-in-fact.

The principal’s declaration does not oblige the attorney-in-fact to act, it only gives him the right to do so.
A separate detailed contract for service has to be made if the attorney-in-fact is paid for his services.

In compliance with the general rule of „no formalism” when making declarations of intent, a power of attorney declaration may be made in any form which means also orally or even implicitly.

However, both the Civil Code (art. 99 of the CC) as well as other statutory laws anticipate a departure from the above mentioned rule, such as for example:

The principle of identity between the form of a power of attorney and the form of the legal transaction for which it is given. This means that a power of attorney has to be given in the same form as the form required for the validity of a legal transaction to be entered into by the attorney-in-fact. For example, the form of a notarial deed to transfer/acquire real estate (art. 158 of the CC), or in a written form with notarized signatures to transfer an enterprise (art. 75 §1 of the CC). The need for a specific form may arise both from statutory law and the parties’ intention.
A general power of attorney, which will be discussed later, has to be made in writing, otherwise it will be invalid.

In cases which are not exceptions from the rule and in which we can give a power of attorney in any form it is best to give it expressly, in a written form. Such a power of attorney may prove useful especially for evidence purposes, and helps avoid uncertainty, e.g. about the attorney-in-fact or his scope of authorisation.

In proceedings concerning foreigners conducted before the province office, a written power of attorney is customary.

The attorney-in-fact’s scope of authorisation depends on the principal’s intent, on the condition however, that he cannot give an unlimited power of attorney that is, a power of attorney to enter into all legal transactions.

Giving such a power of attorney is against statutory law and thus makes it invalid. A person acting on such a power should be considered unauthorised. The scope of authorisation always has to be specified. It is the basis for determining the type of a power of attorney. It may be:

General	For all acts of ordinary management, that is acts which are not exceptional and are necessary for dealing with matters concerning the normal usage of things; e.g. a power of attorney for the administration of a building includes, among other things, executing contracts with utility providers, but not the sale of the building. It is impossible to make a list of acts of ordinary management in advance, the actual state of affairs has to be addressed each and every time. Depending on the situation, the nature of the same act may be that of an act of ordinary management or that exceeding it. A general power of attorney should be made in writing; otherwise it will be invalid.
Specific	For acts of a specific type (sort) which are usually performed repeatedly by the attorney-in-fact, e.g. a shop employee making contracts of sale.
Special	For the performance of a special act defined in advance, e.g. a transfer of real estate.

A power of attorney is a legal relationship based on the principal’s confidence in the attorney-in-fact. That is why the attorney-in-fact has to act in person and does not have the right to use another person in his place (a so-called substitute) if he was not authorised to do so.

The attorney-in-fact’s authorisation to give substitute power-of-attorney may follow from:

The wording of the power of attorney, therefore from the intention of the principal;
Statutory law, e.g. art. 91 point 3 of the CCP (Kodeks Postępowania Administracyjnego, the Code of Civil Procedure) states that a warrant of attorney includes the authorisation to give a further warrant of attorney to a lawyer or a legal counsel;
The legal relationship which is the basis of the power of attorney, e.g. a mandatary may entrust someone else with his task if it follows from the contents of the contract, custom, or if he is forced by circumstances.

It is worth knowing that a revocation of a power of attorney does not terminate substitutions granted by the revoked attorney-in-fact. Substitutes can act on behalf of the principal until they are recalled by him.

After the authorisation expires, an attorney-in-fact is obliged to return the power of attorney document to the principal. However, he may demand a certified copy of that document and the expiry of the authorisation should be indicated on the copy.

If, after the power of attorney has expired, the attorney-in-fact enters into a legal transaction on behalf of the principal within his rights as attorney-in-fact, this legal transaction is valid unless he knew or could have easily found out that the authorisation had expired.

The point of this rule is to protect third parties’ confidence in an attorney-in-fact’s actions. This protection is limited to the degree of ease with which information about the expiration of the power of attorney could have been obtained.

The attorney-in-fact’s awareness of the expiration of his authorisation does not matter for the effectiveness of the transaction.