What is the Legal Relevance of Power of Attorney?

Although you may be familiar with the words “Power of Attorney” you may not have a full understanding of the concept. In order to shed some more light on the subject, some basic facts about Power of Attorney are explained in this article

A Power of Attorney – “Procura” in Italian, is a legal document by means of which a “principal” gives certain powers to act legally on his/her behalf to someone else, the “agent”.

A “Procura” clarifies exactly what powers the principal gives to the appointed agent.

There are two main types of “Procura”:
1. In case of a “Procura Speciale” (Special Power of Attorney), limited powers are given to your attorney/agent in the following cases:
- If, for instance, you are purchasing an estate in Italy, but cannot be on site on the day in which the sale deed must be signed, you can bestow the power to sign such a deed on your attorney / agent.
- If, for example, you live in the USA, have inherited assets in Italy, but are unable to make it to Italy to file for probate, re-register assets in your name or organize the legal division of assets from a communal inheritance, you may give your attorney / agent the power to handle the Italian succession procedure on your behalf.
2. A General Power of Attorney (Procura Generale) entitles your agent to do almost anything you could do.

In what circumstances can a Procura be revoked?
Both Special and General Power of Attorney are usually terminated in case the principal dies or becomes legally “incapable”. However, if necessary, a Power of Attorney can be annulled at any time by means of the same legal document used to confer it in first place.

What should I consider before appointing an agent/attorney? If you are considering granting a Power of Attorney, you should be extremely careful about whom you choose as an agent/attorney as you are delegating the very management of your own affairs to someone else. Hence, it is extremely important that you entrust a reliable and competent person with this delicate task, preferably a professional. Conferring Power of Attorney to someone who does not have enough experience or that you might have a conflict of interest with is highly advised against.

What are the legal requirements to the issuing of a Procura?
A Procura is a formal document, and many legal requirements must be met before it can be issued.
Generally, it is examined by the competent authorities carefully before it is released. The agent will need to sign the Procura in his / her home country in the presence of a public officer. The USA, UK and Australia have signed The Hague Convention of 5th October 1961 which abolished the Requirement of Legalisation for Foreign Public Documents. In any case, an Apostille Certificate or Stamp, also known as the Hague Apostille, is required as proof of authenticity.
Check relevant procedures with for example, the UK Foreign and Commonwealth Office, the US Department of State and the Australian Department of Foreign Affairs and Trade.

A Power of Attorney is a very delicate matter. You are granting your rights and the handling of your affairs to someone else. Unfortunately, it is not uncommon to find people who have bestowed Power of Attorney on friends and relatives, who, then, turn out not to be as professional and reliable as they seem. Make sure you seek help from a professional before drawing up a Procura.

ABOUT THE AUTHOR: De Tullio Law Firm
De Tullio Law Firm is an international law firm specialized in Italian cross border real estate transactions, and Italian inheritance law. Along the years, it has gained a wide experience in the real estate field, as well as providing assistance with wills & probates, EU law, litigation, arbitration, taxes and corporate law. De Tullio Law Firm is listed on the British and American embassies websites, and contributes as legal expert with several publications.
Our aim is to assist our clients in the best possible way by giving independent legal advice, but we also try to inform and educate our on-line visitors on the basics and beyond.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.

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