Notes on the preparation of a general power of attorney
What is a power of attorney?
A power of attorney is a declaration that you have chosen representation for a certain or all possible legal transactions who can legally conclude these on your behalf.
What does that mean in detail?
With the exception of certain so-called highly personal declarations of intent, such as a wedding, will, or paternity acknowledgment, a power of attorney can generally be concluded for all legal transactions.
There are certain proxy relationships defined by law (e.g. parents for children who have not yet reached the age of majority) or those that are granted by the agreement of a power of attorney. A power of attorney can be issued only for certain areas, for specific transactions, or by means of a general power of attorney that includes all legal acts and transactions.
Is there a risk to issuing a power of attorney?
The representation can legally conclude legal transactions included in the scope of the power of attorney. Such transactions cannot be revoked. For this reason, it is advisable to consider very carefully who will be given the power of attorney.
How do I do that?
To create a legal valid power of attorney, the principal must have unrestricted capacity to act. That means they must be an adult and able to exercise sound judgment. In principle, a power of attorney can be granted orally. However, for the purpose of proof and to prevent misunderstandings, it is recommended to grant a written power of attorney. You can grant a power of attorney to a so-called natural person, but also to a legal entity (z.B. a limited liability company/GmbH).
How long is a power of attorney valid for?
You can decide this yourself. However, if it should remain in effect after your death or in the event you become incapacitated, this must be expressly stated (please note our article on living wills https://www.myright.ch/en/legal-tips/partnership-family/determine-your-own-assistance). You can revoke the representation at any time up to your death. Upon your death, your heirs can revoke the power of attorney. If the power of attorney has also been granted to a bank, for example, then the revocation must also be submitted to the bank.
The power of attorney expires in the following cases:
- Completion of the transaction for which the power of attorney was granted
- Time limitations
- Waiver of the power of attorney by the representation
- Death or incapacity of the person represented (unless the power of attorney should also continue in such a case)
What happens if a representative acts without a power of attorney or the power of attorney was revoked?
In general, there are no legal implications between the represented person and the third party in this case. However, the represented person can approve the transaction retroactively. The third party, who was unaware of the lack of a power of attorney, can claim damages against the representative without a power of attorney.
Additional legal information and a sample power of attorney can be found here for download.