What they are
A power of attorney is an act made by a person giving the power to someone else to represent him / her.
The situation hold by the power of attorney takes immediate effects implying the one giving the power.
The notary writes the power of attorney texts according to the applicants will.
The notary can also send by electronic mail power of attorney minutes which she needs to perform notarial acts in her office in case the applicant is somewhere else.
The power of attorney is generally freely revocable by the person giving the power even when the opposite has been agreed or the person has previously renounced the right to revoke the power of attorney.
The power of attorney expires with the death or interdiction of the person giving the power, his / her disability or when his/ her attorney renounces it or when the judicial relation on which the power was based has been extinguished (for example a power of attorney made between spouses now divorced or between an employer and his former employee).
The power of attorney is ruled by the situation to be hold: if the law requires a written document, the power of attorney will be written and if it requires a in presence signature authentication it will be the same.
Nevertheless, whenever a public act is required this rule changes which means you do not need to make a public act to give power by the means of a power of attorney for a situation requiring a public act; in those cases, the power of attorney is replaced by: a public instrument issued by the notary, an authentication act or a handwriting and signed attestation.
The person who gives the power to someone else must have and present one of the following valid identification documents issued by one of the EU countries: identity card, citizen card or driving license (or similar, military or diplomatic), passport, residence permit, Brazilian identification document mentioning the holder’s nationality and referring to the Friendship Agreement Portugal Brazil, Angolan, Cape Verdean, Guinean or São Tome identity card.
A power of attorney can be registered onProcurações On Line available from anywhere and it can be kept in the notary’s office.
The person empowered can choose someone else to represent him / her delegating the power whenever he has the authorization given by the person or the contents of the power of attorney or the judicial relation that determines it.
Marital consent must specify the acts a spouse authorizes the other to do and when it is related to property it must indicate the council where that property is located.
Some special cases
When a spouse gives the other a power for example to sell a property he / she must indicate at least the council where that property is located.
When someone wishes to give power for a donation, he / she must identify the object to be donated and who it is going to be donated to.
Business with yourself
When someone gives the power to someone else who will be a personal part in a business on an opposite side, the power must explain that the person giving the power can do business with him / herself or identify all the essential elements of the contract such as the object and the price. Ex.: A gives the power to B to sell and B is the buyer.
A person can give the other the power to apply for a marriage process; in that case, the power of attorney must individualize the other spouse, specify the kind of marriage (civil or religious and the religion) and the marital property regime.
Power can also be given to someone to represent one (just one) of the spouses in the wedding ceremony and that must be explained in the power of attorney text.
The so-called “irrevocable” power of attorney
There are no irrevocable power of attorneys and the power of attorney is not an abstract business, autonomous from the situation it was made for, different from a credit title.
The law accepts that a power of attorney is made for the interest of the person giving the power or for a third part.
In that case, the power of attorney does not expire with the death of the person who had given the power and it cannot be revoked without an agreement between the person who had given the power and the person who had received or the third part for the interest of the person it was made for, unless there is a valid cause, evaluated by a court.
This interest always arises after a business that was its origin, the so-called subjacent relation. There are many examples, but a common one is when a bank which opens a credit line for a company demands a power of attorney to pawn or sell its shares in case of failure.
These powers of attorney are a issued by public instrument whose original is kept in the notary’s office.
The so-called “irrevocable” powers of attorney having the power for a real estate property alienation are subjected to the payment of the IMT tax (Imposto sobre as Transmissões Onerosas de Imóveis) and they must be registered onProcurações On Line