Power of Attorney (POA)
What is the Power of Attorney (POA)?
The power of attorney (POA) in Italian “Procura” is an institution regulated by articles 1387 and following of the Italian civil code, concerning voluntary representation and the power to act in the name and account of another person in the fulfillment of legal acts whose effects will arise directly on the represented person.
Some example of practical utility of a Power of Attorney:
- Real Estate Conveyancing (including all preparatory activities for the notary deed) otherwise, the alternative a foreigner that doesn’t speak Italian, in order to execute a property transaction in Italy, needs to be physically present and have a legal translation of the contract. In this case, an interpreter is required to be part in the closing before an Italian notary and the transaction deed is required to be prepared in two languages (Italian and the foreign language). Note: For the Clients present in Italy, to make it more convenient, we usually assist them in the notary deed giving them the legal explanation of any point of the act, in this way, the client avoid to pay other expenses for interpreters and translators;
- Italian inheritance claims, refusal, or related transfers of funds;
- Requesting and Obtaining a Codice Fiscale;
- Opening, modifying, managing or closing a bank account;
- Requesting and Obtaining a Loan or a Mortgage;
- Property or Asset Management.
Types of POA.
When someone confers the power to another person to perform acts in the name and on behalf of these, it is called a Power of Attorney and it can be special or general, depending on whether that is conferred for the performance of specific tasks or for a series of activities not previously determined.
To be more clear, the general power of attorney, for an indeterminate number of acts, may confer authorization power only for the completion of acts of business as usual or ordinary administration.
On the other hand, the special power of attorney may confer authorization power also for the performance of special administration acts.
The acts performed by the representative will have the characteristic of being directly effective in the legal sphere of the represented (article 1388 of the civil code).
Why should I need one to buy my property in Sardinia or anywhere in Italy?
From the juridical point of view, therefore, it will be as if the documents were put in place by the person represented.
To give an example, a person may purchase an real estate asset (a luxury villa in Sardinia) through an attorney who represents him for the whole process and at the time of the notary deed, acting in his behalf. In this case the purchased asset will be directly owned by the represented person, not by the representative who appeared at the time of the purchase.
Form of the Power of Attorney.
Article 1392 of the civil code disregards the form that the power of attorney must have.
The latter must not have a predetermined form, but must have as a minimum form that of the deed that the representative will complete in the name of the represented. In other words, the Power of Attorney has no effect if it is not conferred with the forms prescribed by law for the act that the representative must conclude.
If, still using the real estate example, a POA is given to purchase a real estate asset, the written form will be required as a minimum, in this case, a POA given orally will have no effect.
At the same time, if the POA is signed abroad, it will be necessary the legalization, notarized or apostilled, depending on the location of the represented while signing the Power of Attorney.
Limitations of the POA.
The representative, however, in the exercise of the power conferred, must observe very specific limits. The representative, in fact, can never exceed the limits set in the delegation act. If, for example, the power to purchase real estate has been conferred, the representative cannot contract with a contractor for restoration or any other unrelated action. The contract performed in the absence of the powers of representation will remain ineffective.
However, the proxy does not allow the representative to perform any act. It cannot be conferred for the fulfillment of so-called “very personal” acts, to which the interested party must necessarily take part. For example, it will not be possible to draft a will by Power of Attorney, as it is a very personal act.