Drawing up a power of attorney is a forced measure resorted to by the heads of enterprises and organizations to grant the right to protect their interests to other individuals or companies. As a rule, powers of attorney are written to judicial services (for example, in the name of the company’s lawyer), to banking structures (in the name of the company’s accountant), and to other organizations (for example, to the manager or head of the procurement and supply department, etc.).
- Form and sample
- Free download
- Online viewing
- Expert tested
FILES
What is the transfer procedure?
There is no legal concept of subrogation. However, all the basic characteristics established by the science of civil law will help to obtain a suitable definition.
Reliability is distinguished by the following characteristics:
- This is a one-sided deal. It is performed by the original attorney in order to provide more effective representation of the interests of the principal.
- The form that a power of attorney issued by substitution must comply with must be drawn up in accordance with the requirements established by law.
- This document is completely derived from the original power of attorney. The powers under it cannot be expanded. In addition, the validity period of such a power of attorney cannot extend beyond the time limits of the main document.
Considering these characteristics, a subpoena can be defined as a unilateral transaction made by the original attorney to transfer powers under a power of attorney, the form of which must comply with the requirements of the law, and the content and term cannot go beyond such parameters established in the original document.
Cancellation of this power of attorney is possible both together with the main one and separately from it.
Accompanying a lawyer during the transfer procedure
Help from a specialist with 20 years of experience!
+7
Article 187 of the Civil Code of the Russian Federation. Submission (current edition)
1. Delegation is a unilateral transaction made by a representative on his own behalf. By carrying out it, the representative delegates to another person the powers he has to perform those actions that he must personally perform. At the same time, the validity of the initial power of attorney does not terminate, and the original representative retains his status, as evidenced by clause 3 of Art. 188 of the Civil Code of the Russian Federation (see commentary to it), according to which the sub-power of attorney loses force with the termination of the main power of attorney. Powers can be delegated not only to one, but also to several persons at the same time.
Paragraph 1 of the commented article specifies two grounds for transfer of entrustment: the person to whom the power of attorney has been issued may entrust their performance to another person if authorized to do so by the power of attorney, and also if forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney and the power of attorney does not prohibit re-confidence.
In the latter case, we are talking about such circumstances as serious illness, the helpless state of a representative, the introduction of a state of emergency, a natural disaster or the conduct of military operations in the territory, etc.
2. Paragraph 2 of the commented article establishes the obligation of a person who has transferred powers to another person to notify the person who issued the power of attorney about this and provide him with the necessary information about the person to whom the powers have been transferred within a reasonable time.
At the same time, it is expressly stated that failure to fulfill this obligation makes the person who transferred the powers responsible for the actions of the person to whom he transferred the powers, as if for his own.
The composition of the necessary information in the commented article is not defined, but usually this includes, in addition to data on the person’s last name, first name, patronymic, place of residence, which allows him to be identified in civil law, the level of professional knowledge and other qualities that may affect the exercise of powers.
The concept of a reasonable period is not established by law, however, if a transfer is carried out without the prior consent of the person represented, such data must be provided to the latter without delay, at the first opportunity.
3. For a power of attorney issued by way of subpoenaing, a mandatory notarial form has been established. Thus, the transfer of trust, as indicated in the previously valid version of the commented article, must be carried out in notarial form.
An exception is made for powers of attorney issued by way of delegation by legal entities, heads of branches and representative offices of legal entities: in this case, a notarial form is not required.
4. In paragraph 4 of the commented article it is established that the validity period of a power of attorney issued by way of delegation cannot exceed the validity period of the power of attorney on the basis of which it was issued. This is due to the fact that the transfer of power of attorney is derived from the initial relationship of representation, therefore the duration and volume of powers transferred in this manner cannot exceed those enshrined in the original power of attorney.
5. In accordance with paragraph 5 of the commented article, reassignment is not allowed in the cases provided for in paragraph 3 of Article 185.1, which states that a power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships or to receive correspondence, with the exception of valuable correspondence, can be certified by the organization in which the principal works or studies, and by the administration of the inpatient medical institution in which he is being treated.
6. A representative who has transferred powers to another person by way of delegation does not lose his powers under the original power of attorney. Otherwise may be specified in the power of attorney or in the law (clause 6 of Article 187 of the Civil Code of the Russian Federation).
The existence of such a rule is due to the fact that a representative who transfers powers to another person by way of delegation does not lose the corresponding powers.
7. Subsequent transfer of trust is not allowed as a general rule. However, this norm is dispositive in nature and something else may be provided for in the law or in the initial power of attorney (clause 7 of Article 187 of the Civil Code of the Russian Federation).
The delegation of powers of a representative in court is permitted through an oral or written statement of the original representative.
Comment source:
“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"
S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019
Types of powers of attorney executed in the order of substitution
There are several classifications of such documents. Depending on how many times such actions were performed, they are distinguished:
- initial reassignment, which is the 2nd link in the chain of relevant documents;
- subsequent transfer of trust, serving as the 3rd and further link in this chain.
Depending on what form is used, there are:
- simple written power of attorney;
- power of attorney that has been notarized.
Depending on the possibility of cancellation:
- standard power of attorney;
- irrevocable power of attorney.
Rules for drawing up and processing a document
The document does not have a unified template that is mandatory for use, therefore it is written in any form, depending on the idea of this document and the needs of the principal. However, there is a number of information that must be contained in it without fail, these are the following data:
- about the principal and the authorized person,
- a complete list of actions that a trusted person can perform on behalf of his principal,
- the period during which it is valid,
- place and time of its compilation.
In addition, this power of attorney must contain information about its certification by a notary:
- surname, name, patronymic of the notary,
- the name of the notary office where the certification took place,
- document registration number.
The power of attorney can be issued either on a regular standard A4 sheet or on the organization’s letterhead; it can be written either “manually” or printed on a computer, but it must certainly contain “live” signatures of the interested parties.
Grounds for which it is possible to delegate powers
The main reason is the indication of such a possibility in the original document. A power of attorney with the right of substitution must have an extremely clear formulation of this power. As a rule, we are talking about the phrase “the powers under this power of attorney can be transferred to other persons.”
The other reason is exceptional. This is understood as the effect of circumstances forcing the original trustee to make a transfer of trust. These may include a serious illness or injury that limits the ability of this person, as well as various types of natural disasters, wars and states of emergency.
The main criterion is the significant difficulties of the original attorney in defending the interests of the one who issued the document. Such grounds are not subject to application if, at the request of the trustee, a corresponding prohibition is expressly established.
Form
The form of the form is not fixed by law, so it can be issued in a simple form. To do this, use a white sheet of A4 paper. Some organizations electronically create a document template, which later, after drafting, is sent to print. Also, a power of attorney can be issued on company letterhead, the procedure for using which is reflected in the accounting policy.
( Video : “When a power of attorney can be delegated”)
A form drawn up in accordance with all the rules is a documentary confirmation of the decision of one party to transfer certain powers to the second. For example, in large organizations, managers often instruct their subordinates to represent their interests in various authorities. In order for an employee to make any decisions on behalf of the company, he must have a document giving him the appropriate authority.
Note ! In legal practice, such powers of attorney are quite common. Their peculiarity is that the principals can grant almost any right of action. Most often, such forms are issued for courts and other state and municipal structures.
What it is
After execution of the document, the trustee assumes a number of obligations. Situations often arise in which it is not possible to perform the functions assigned by the principal. The legislation allows you to transfer your powers in whole or in part to third parties capable of fulfilling these instructions. For example, a proxy cannot travel to another locality to conclude an agreement. In this situation, he acts as a trustee, transferring powers to another person, but does not expand them.
A power of attorney (in accordance with the provisions of the Civil Code, Article 187) for the transfer of powers must be certified by a notary office. It cannot be valid for longer than the main document. The principal has the legal right to revoke the power of attorney, without specifying any reasons. He must remember that after the expiration of the form issued in his name, he will not be able to issue a transfer of power.
Reasons for drawing up
You can transfer authority to an outsider in several cases:
- If there is a clause in the main document that states that the attorney can delegate his powers to a third party.
- The need for the transfer of powers was caused by a number of serious circumstances that prevented the trustee from independently completing the tasks assigned to him. However, the form should not contain a clause prohibiting such a procedure.
Note! Russian legislation provides for the possibility of delegating powers not to one, but to several persons at once. At the same time, they do not need to jointly carry out the instructions of the principal. They, in turn, can also delegate authority to other people. This procedure is provided for in Art. 185, 187 Civil Code. If the document states that all trustees must jointly represent the interests of the principal, then they are obliged to fulfill the assigned tasks on the spot.
Notarization of powers of attorney issued by substitution
The law establishes the possibility of attracting a subsequent representative only when the notarial form of the document is used. The notary is expected to competently evaluate the authority in the original power of attorney. In addition, persons acting on a sub-assignment basis will have documents whose legal force is unquestioningly recognized by all participants in civil transactions.
The actions of such a representative will not raise unnecessary questions. The use of any other registration method is prohibited.
An exception to this requirement are powers of attorney of a legal entity. This applies to both headquarters employees and other departments. The heads of a branch or representative office of a legal entity can also issue such powers of attorney. At the same time, they are also subject to the rules regarding the indication of such powers in the original document.
Can a legal entity issue a power of attorney with the right of substitution?
Let's first understand the terms.
A power of attorney with the right of substitution is a document issued by the principal to the representative, giving the latter certain powers that he exercises on behalf of the principal.
A power of attorney by way of subrogation is issued by a representative of the principal, who transfers his powers further down the chain.
A legal entity has the full right to issue a power of attorney both with and without the right of subrogation - the legislation does not contain restrictions in this regard.
The rules on transfer of trust are prescribed in Art. 187 Civil Code of the Russian Federation. By default, the actions specified in the power of attorney can only be performed by the representative who appears in the document.
However, if the power of attorney states that the original representative has the right to transfer (delegate) his powers to another person, this is permissible.
It does not matter who issued the power of attorney - an individual or a legal entity.
Notice of transfer
The law protects the interests of the original principal. For this reason, the attorney executing the subsequent power of attorney has the responsibility to communicate such information to the person represented.
The message must be transmitted within a reasonable period. It must include all information about the new trustee, including name, address and available methods of communication.
If this duty is not fulfilled, the original representative will be exposed to the risk of liability for the dishonest and unskillful acts of the subsequent attorney.
