A general power of attorney transfers to the attorney the broadest authority to act in the grantor’s name, and this breadth makes the document the most dangerous one for the person giving it. The mandate chapter of the Civil Code provides the instruments with which the grantor protects their interests: an exhaustive list of authorised acts, a prohibition on delegation, reporting duties and the right to revoke at any time. We explain how these mechanisms work and how we draft the text so that it never works against you.
The legal nature of the mandate relationship
Authority is conferred by a declaration of will made towards the attorney or towards the third party with whom the representation is to take place — this rule is laid down in the Civil Code. Under a contract of mandate, the attorney is obliged to perform for the principal one or several acts in the principal’s name and at the principal’s expense — hence the practical difference between a special power of attorney for one concrete act and a broad general power of attorney.
As a rule, the declaration of will does not require the form necessary for the underlying transaction — unless a special form is prescribed. In practice the boundaries of a general power of attorney therefore depend entirely on the text we draft: the law does not limit the attorney by itself; only a correctly written document does.
The delegation risk and how to control it
Under the contract of mandate the attorney must perform the mandate personally, unless permitted to delegate it to a third party or forced by circumstances; assistants may be involved. Where delegation is permitted, the attorney is liable only for such fault as is attributable to the delegation and to the choice of that person.
For a general power of attorney this norm is decisive: broad wording often enables the attorney to transfer the entire mandate to someone else. We therefore write directly into the text that delegation is prohibited — one clause that returns control over whose hands your affairs end up in.
Instructions, information and reporting
The attorney must follow the principal’s instructions and may not deviate from them unless the attorney may assume the principal would approve such deviation knowing the state of affairs; before deviating, the attorney must notify the principal and await the decision, provided the delay creates no risk of loss. The attorney must also give the principal necessary information and, on request, progress reports, and after completion must render an account.
Confidentiality is protected as well: the attorney may not disclose facts learned in the course of the activity whose secrecy the principal legitimately interests in, and this duty survives the end of the relationship. Restricting the information and reporting duties requires written form — the level of accountability is yours to set. Property matters carry a protective presumption: property the attorney acquires at the principal’s expense in their own name, or handed over for the mandate, counts in relations with creditors as the principal’s property.