It is not uncommon for the testator to appoint another person while he is still alive to dispose of his inheritance in his own interest before his death and especially afterwards. He then regularly makes use of the power of attorney for this purpose.
Types of power of attorney and their effects
First of all, it is important to distinguish between two types of powers of attorney in this context. On the one hand, the testator can have a so-called transmortale Grant power of attorney that already takes effect before his death, but continues to work after his death. This means that the authorized representative with the transmortal power of attorney is already authorized to act for him within the limits of the power of attorney while the testator is still alive. On the other hand, the testator can use a so-called postmortale Grant power of attorney that only takes effect after his death. According to this, the authorized representative can only act and dispose of his assets after the death of the testator.
Furthermore, powers of attorney can generally be differentiated in terms of their scope. With a so-called. Generalvollmacht all legal transactions can be carried out by the authorized representative. In contrast, the authorized representative with a so-called. Special power of attorney only authorized to undertake a specific and precisely defined legal transaction. If the testator wants to grant the person to be empowered extensive powers, he should opt for a general power of attorney.
Purpose and form of the power of attorney
With the power of attorney, the proxy can now carry out legal transactions with effect for the estate. That means that he can dispose of the legacy of the testator as long as and to the extent that his actions are covered by the power of attorney. He does not need a certificate of inheritance for this. The power of attorney is valid even if the heirs have not yet been determined.
In principle, the power of attorney does not require any form. For reasons of legal certainty, however, it is advisable to at least record the power of attorney in writing. If the power of attorney also relates to legal transactions relating to real estate or companies, notarial certification is also recommended in order to comply with any formal requirements. In this way, problems that may arise later can be counteracted from the outset and later processing, especially after the death of the testator, can be made as simple as possible from the start.
Power of attorney vs. execution of will
Instead of a power of attorney, the testator can also decide to execute a will during his lifetime. He must then order this in his testamentary disposition, i.e. his will or his inheritance contract. The executor also has to carry out the will of the testator. Whether a power of attorney or the execution of a will is more appropriate must be decided on a case-by-case basis. I am of course at your disposal for advice on this matter.
Death of the testator vs. death of the proxy
Now dies the testator, the power of attorney remains in principle. As described above, depending on the type of power of attorney, it is effective now at the latest. The authorized representative can thus undertake the agreed legal transactions with the power of attorney in the interest of the testator. However, if the heir of the testator becomes aware of the power of attorney, he can take action against it. More on that later below. On the other hand, should the plenipotentiary die, this cancels the power of attorney in case of doubt. This means that, in turn, the heirs of the proxy are no longer authorized, so they cannot do anything with the power of attorney. This is regularly also in the testator’s interest; after all, he has just chosen the agent during his lifetime.
Revocation of the power of attorney
Powers of attorney can generally be revoked. If the powers of attorney granted by the testator work beyond his death, they can no longer be revoked by him, but only by his heirs. Powers of attorney are in doubt revocable. In the case of revocable powers of attorney, the heirs are always entitled to revoke them. You can declare the revocation either to the authorized representative or to the third party against whom the authorized representative acted as such. In addition, the testator can also use his power of attorney for irrevocable to explain. For this reason alone, the heirs should not be deprived of the opportunity to take action against the power of attorney. You remain entitled to withdraw your consent for an important reason. The aforementioned general power of attorney is always revocable due to its extensive authorization.
If the testator has given the proxy a power of attorney, this must be returned after the revocation. This is of great importance insofar as the document creates a so-called legal certificate. This means that even if the power of attorney has already been effectively revoked, the holder of the power of attorney can continue to conduct legal transactions with it. Finally, third parties must be able to trust that the person who can present the document is actually allowed to carry out the relevant legal transaction.
Banking
The fact that, as already stated, the power of attorney basically remains in place after the death of the testator can be particularly dangerous for the heirs. Although a revocation is possible in principle, the heir often does not know anything about the power of attorney. If, for example, the authorized representative goes to the bank with his power of attorney and allows a certain amount to be transferred from the testator’s account to his own, this legal transaction is initially valid. In addition, in the opinion of the Federal Court of Justice, the bank is neither entitled nor obliged to provide information to the heir. Furthermore, it does not have to allow the heirs to revoke the power of attorney by waiting. In these cases in particular, it is advisable to consult a lawyer.
Legal advice
The granting of a power of attorney, which should still have an effect even after the death of the principal, needs to be carefully considered. Legal advice is always useful here, not only with regard to the formal issue, but also with regard to the content. Especially within a community of heirs, i.e. if there are several heirs, legal advice at an early stage can prevent later disputes.
Legal support is also advisable for the revocation of a power of attorney that has already been issued.
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