Power of attorney in administrative proceedings

The CAP is very laconic about the power of attorney and devotes only a few clauses to it (art. 32-33 and art. 40 § 2 of the CAP). Such limited regulation results in many constructional doubts, and, consequently, leads to a non-uniform practice, depending on the administrative body.

According to the general rule, that party to the administrative proceeding which has an administrative capacity and a capacity to sue has the right to appoint an attorney-in-fact (art. 32 of the CAP).

An administrative capacity and a capacity to sue is the possibility of taking effective legal action in administrative proceedings. It is closely tied to a party’s capacity to enter into legal transactions.
Polish law differentiates between the following categories of the capacity to enter into legal transactions:

Polish law differentiates between the following categories of the capacity to enter into legal transactions:

Full capacity	Who has it: adults (art. 11 of the CC) and minors who became adults by marriage (art. 10 § 2 of the CC). Full capacity to enter into legal transactions is a full administrative capacity and capacity to sue. Such a party usually acts independently in administrative proceedings that is, they take appropriate action before public authorities in person, e.g. to acquire certain rights. However, the party is not obliged to act in person in administrative proceedings.
No capacity	Who has it: individuals who have not attained thirteen years of age, and persons fully legally incapacitated (art. 12of the CC). Having no capacity to enter into legal transactions results in having no administrative capacity and no capacity to sue. Such parties are obliged to use their legal representative in administrative proceedings (art. 30 § 2 of the CAP). They may also be represented by an attorney-in-fact but he has to be appointed by their legal representative. For example, parents may appoint an attorney-in-fact for their child who is a party to the proceeding. He will be the child’s attorney-in-fact, not the parents’.
Limited capacity	Who has it: minors who have attained thirteen years of age, and persons partially legally incapacitated (art. 15 of the CC). Such persons are considered to have full capacity to enter into legal transactions in cases involving: executing contracts of a type commonly executed in minor current day-to-day matters, disposing of earnings, and unrestricted use of property items. In other cases they are considered to have no legal capacity. Although it does not follow explicitly from the CAP, it is assumed that persons with limited capacity to enter into legal transactions should use their legal representative in administrative proceedings. This is especially important in situations in which the party’s actions performed in person may suggest that they are not fully conscious of the objectives and consequences of the pending proceedings. Appointing an attorney-in-fact by such persons is controversial. It seems that they could effectively give a power of attorney for the above mentioned actions with regard to which they are considered to have full capacity to enter into legal transactions. However, there are some who refuse such persons the right to appoint an attorney-in-fact. In such cases this person’s legal representative may appoint an attorney-in-fact.

As a rule, choosing and appointing an attorney-in-fact is the right of the party to the administrative proceeding, and whether this right is made use of depends entirely on the party. The CAP does not anticipate the possibility of appointing an attorney-in-fact ex officio.

An attorney-in-fact can be appointed to perform a specific legal act, e.g. enter an appeal, to execute some procedural acts, e.g. receive documents, or to represent the party in the entire course of an action and to perform all acts related to the proceedings. What matters, is that in the course of an action the scope of a power of attorney can be changed: it can be both extended and limited.

It is the party who determines the scope of a power of attorney. However, when a certain action requires the party to act in person, the possibility of representation by an attorney-in-fact shall be excluded. Cases which demand the party’s personal involvement result from provisions of law (e.g. the party’s oral evidence, a personal appearance before the authority) or from the nature of the act (e.g. setting a signature or getting a medical examination). An administrative authority may also oblige the party to appear in person if it considers the circumstances of the case to require it.

If the party was not summoned to act in person, it can assume that it is authorised to perform an action through its attorney-in-fact (art. 54 § 1 point 4 of the CAP).

Appointing an attorney-in-fact does not limit the party’s personal action in the proceedings. In case of simultaneous action by the attorney-in-fact and the party, an administrative authority should consider the position of the party since the intention of the party always takes precedence.

The party has the right to appoint several attorneys-in-fact (the CAP does not specify their maximum number). In case of appointing several attorneys-in-fact with the same scope of authorisation, each of them may act independently unless otherwise stated in the wording of the power of attorney.

A person who acts on behalf of a party without the required authorisation or exceeds its scope, is liable for damages towards the party. The party may enforce a claim on the terms of civil law, however, a separate court action will be necessary.

A person who acts on behalf of a party without the required authorisation or exceeds its scope, is liable for damages towards the party. The party may enforce a claim on the terms of civil law, however, a separate court action will be necessary.
For a power of attorney to have effect in the proceedings it has to be manifested – information about its existence has to reach the administrative body.
Remember that power of attorney may be revoked at any stage of administrative proceedings. A revocation of a power of attorney has legal consequences in relation to the administrative authority upon notifying it, and to the opponent and other participants upon the service of the notice by the authority.

An attorney-in-fact also has the right to terminate the power of attorney. A lawyer or a legal counsel who has terminated the power of attorney is obliged to act on the party’s behalf for two more weeks unless the principal waives the requirement. Every other attorney-in-fact should, despite the termination, act on behalf of the principal for the same period of time if it is necessary to protect the principal from adverse legal effects (art. 94 § 1 CCP).

A power of attorney is extinguished upon the party’s or the attorney's death. It is also discontinued if the attorney-in-fact loses his capacity to enter into legal transactions. An action performed by an attorney-in-fact deprived of his capacity for legal transactions is considered ineffective.