Notarial power of attorney: what it is, how it works, when it is needed and how much it costs

A power of attorney is a document by which a person, known as the principal, authorises another person, known as the attorney or representative, to act and sign in their name and on their behalf. It is required when it is not possible to be present in person to buy or sell a property, sign a mortgage agreement, take part in the administration of an estate, manage business affairs or carry out other acts for which the law requires either personal attendance or a written document drawn up before a notary.

From a legal point of view, a notarial power of attorney is a unilateral instrument by which the principal grants the attorney the power to act on their behalf in dealings with third parties. It does not require the attorney’s formal acceptance: when the attorney performs an act within the limits of the powers conferred and declares that they are acting on behalf of the principal, the effects of the transaction are directly attributed to the principal.

Where the law requires the final deed to be drawn up as a notarial deed or an authenticated private document, the power of attorney must also be drawn up or authenticated by a notary.

When is a notarised power of attorney required?

A notarised power of attorney is required in various situations in everyday and professional life where a person is unable or unwilling to be present in person to sign a contract or a public document.

The most common situations in which a power of attorney may be useful include:

• residence or relocation abroad: the transferor lives or works in another country and needs to carry out financial or property transactions in Italy without having to travel there;
• physical inability or hospitalisation: health reasons, hospital admissions or mobility difficulties prevent the person from physically attending the notary’s office;
• work or personal commitments: the inability to attend on the scheduled date for the final conveyancing or the signing of a mortgage agreement;
• property and corporate transactions: the need to manage, remotely, the signing of preliminary contracts, sales agreements, deeds of gift, shareholders’ meetings or mortgage discharge procedures.

Who can be appointed as an attorney?

The law allows considerable freedom in choosing the person to whom to grant the power to act on one’s behalf. The person granting the power of attorney (the principal) may appoint a trusted individual as their attorney, provided that the attorney meets the requirements laid down by law.

A proxy may be, for example:

• a family member, such as a child, spouse, parent or sibling;
• a trusted professional, such as a solicitor, an accountant or a consultant;
• a partner or associate, for the purpose of carrying out business activities;
• another trusted person deemed suitable to represent the contributor’s interests.

The choice must fall on a trustworthy person, as the acts carried out by the attorney-in-fact, within the limits of the powers conferred, have direct legal consequences for the principal. The notary also verifies that the power of attorney complies with the law and that the powers conferred are correctly specified.

Requirements for a solicitor

It is important to distinguish between the requirements placed on the grantor, that is, the person granting the power of attorney, and those placed on the attorney, that is, the person receiving it.

The person granting the power of attorney must have the legal capacity to act and, therefore, be of legal age (except in specific cases provided for by law) and capable of understanding the meaning and consequences of the document they are signing.

The attorney, on the other hand, pursuant to Article 1389 of the Civil Code, must possess the capacity to understand and act in relation to the act to be performed. It is also possible to appoint more than one attorney in the same instrument, specifying whether they may act separately (each independently) or jointly (with the involvement of all).

What can and cannot the prosecutor do?

A power of attorney does not transfer ownership of assets nor does it confer unlimited power over the principal’s assets. The attorney-in-fact may only carry out acts that fall within the scope of the powers expressly conferred in the notarial deed.

What can the prosecutor do within the limits of their jurisdiction?

Depending on the content of the document drawn up by the notary, the attorney may:

• to carry out transactions relating to immovable property: to buy, sell, exchange or let immovable property;
• carry out financial transactions: enter into loan agreements, withdraw funds, collect receivables and carry out transactions on current accounts, where expressly authorised to do so;
• sign business contracts: represent the company, enter into contracts with suppliers and customers, or file documents with the Companies Register. For further information on corporate transactions and services for businesses, please refer to the section on corporate services.
• to carry out specific acts relating to succession: to accept or renounce an inheritance, or to take part in the division of an estate, where representation is permitted and the power of attorney is in the form required for the act. For further information on the formalities relating to succession, wills and deeds of gift, please consult the section dedicated to notarial services for succession and gifts.

What the prosecutor cannot do

There are specific limits laid down by law and by the public prosecutor’s office itself which the public prosecutor may not exceed.

• acts which, by law, must be carried out in person: it is not possible to grant a power of attorney to draw up or amend a will, sign an Advance Healthcare Directive (AHD) or recognise a child born out of wedlock;
• acts not covered by the powers conferred: the attorney-in-fact may not perform acts other than those specified in the power of attorney. If the limits set are exceeded, the act is ineffective vis-à-vis the principal, unless subsequently ratified;
• acts of extraordinary administration not expressly authorised: even where a general power of attorney exists, the attorney may not sell property, create mortgages, make donations or carry out other acts of extraordinary administration unless such powers are expressly set out in the instrument.

Types of power of attorney: differences between general and special powers of attorney

The law provides for various types of power of attorney depending on their duration, subject matter and the scope of the powers granted to the representative. The main distinction is between a general power of attorney and a special power of attorney.

The Special Prosecutor’s Office

A special power of attorney grants the representative the authority to carry out one or more specific legal acts that are expressly identified. This particular type of power of attorney is limited to the specific matter in question and normally ceases to have effect once all the specifically authorised acts have been carried out. For acts of extraordinary administration (such as the sale of a house), the special power of attorney must specify in detail the type of transaction to be entered into.

Practical example: a power of attorney to sell a specific property, identified by its relevant details, is a typical special power of attorney and ceases to be valid once the transaction for which it was granted has been completed.

The Attorney General’s Office

A general power of attorney allows the attorney to handle a wide range of matters, but general terms are not normally sufficient to authorise acts of extraordinary administration. The sale of property, the creation of mortgages, donations and other particularly significant acts must therefore be expressly provided for and described in the text of the power of attorney, clearly indicating the authority to carry out acts of extraordinary administration as well.

Practical example: a power of attorney issued by an elderly person who entrusts their son with the day-to-day management of all their property, the signing of correspondence and the handling of dealings with financial institutions is a general power of attorney.

General power of attorney and power of attorney for litigation

In addition to general and special powers of attorney, there are forms of representation governed by specific regulations:

• power of attorney for an agent: this relates to the appointment of an agent, that is, the person appointed by the business owner to manage the business, a branch office or a business unit. To ensure that any restrictions on the agent’s powers are made known to third parties, specific formalities must be completed with the Companies Register;
• power of attorney for litigation: this is the document by which a party grants a solicitor the authority to represent and defend them in court, in accordance with the procedures laid down by procedural law.

Requirements for drawing up a power of attorney: age and legal capacity

In order to draw up a notarised power of attorney, the person granting the power of attorney must meet the legal requirements regarding legal capacity.

Legal age and legal capacity

The person granting the power of attorney must have legal capacity — as a general rule, therefore, they must be at least eighteen years of age, subject to the specific cases provided for by law — and possess full mental capacity at the time of signing. The notary is obliged to verify the legal capacity of the person granting the power of attorney before drawing up the deed:

• Minors and persons under legal disability: they cannot grant a power of attorney on their own. Acts concerning them are carried out by their parents exercising parental responsibility or by their guardian, with the authorisation of the court in the cases provided for by law;
• support administration: a person subject to support administration may grant a power of attorney for acts not included amongst those reserved for the administrator under the appointment order;
• Natural incapacity: the grantor must be capable of understanding the meaning and consequences of the power of attorney at the time of signing it. If the notary establishes that such capacity is lacking, they may not accept the document. Depending on the specific circumstances, it may be necessary to consider a protective measure, such as a guardianship arrangement.

Documents for foreign nationals

Foreign nationals may also execute a notarised power of attorney in Italy. The documents required depend on the legal act to be carried out and normally include a valid identity document and, where required, an Italian tax code. For nationals of non-European Union countries, the notary also verifies, where applicable, the condition of reciprocity or the validity of their residence in Italy. If the person granting the power of attorney does not speak Italian, the deed must be drawn up in accordance with the specific formalities laid down by notarial law, with the assistance of an interpreter and witnesses where necessary. The check on reciprocity must be carried out on a case-by-case basis, taking into account the person’s nationality and the legal act to be performed.

National power of attorney, foreign power of attorney and the difference between a power of attorney, a mandate and supported administration

Domestic and overseas powers of attorney

If the grantor is abroad, they do not need to return to Italy to issue the power of attorney. The rules vary depending on where the document is drawn up:

• power of attorney issued in Italy: if it is a public document or if the signature has been authenticated by an Italian notary, it is immediately valid throughout the country;
• consular power of attorney: Italian citizens abroad may, in countries and in cases where consular notarial services are available, apply to the Italian consular authority. The power of attorney is drawn up in Italian and does not require legalisation to be used in Italy;
• A power of attorney issued before a foreign notary: in order to be used in Italy, it must comply with formal requirements compatible with the Italian legal system and be accompanied, where necessary, by an Apostille or legalisation and by an official translation into Italian. The requirements vary depending on the country in which the power of attorney is drawn up and the applicable international conventions; it is therefore advisable to submit the text to the Italian notary who will be using it before it is signed.

The difference between a power of attorney, a mandate and a support administration order

A power of attorney and a mandate are not equivalent instruments. A mandate is a contract whereby a person undertakes to perform one or more acts on behalf of another; a power of attorney, on the other hand, confers the power to represent that person in dealings with third parties. The two instruments may be used together or separately, depending on the transaction to be carried out. However, when a person is unable to look after their own interests, the appropriate instrument is not a power of attorney but a protective measure ordered by a court: as a rule, guardianship, following an application to the Guardianship Court, and only in the most serious cases, legal incapacitation or disqualification. Finally, personal attendance remains mandatory by law for acts of a strictly personal nature, for which no form of delegation or representation is permitted.

Form of the power of attorney and when a notary’s involvement is required

The form of the power of attorney is determined by the nature of the contract that the attorney-in-fact is required to sign. Pursuant to Article 1392 of the Civil Code, a power of attorney is not valid unless it is granted in the form prescribed for the act to be performed.

The involvement of a notary is mandatory when the final deed requires a public deed or an authenticated private deed:

• Property transactions and deeds: the signing of a power of attorney to buy or sell a property, make a gift or take out a mortgage must take place before a notary;
• power of attorney: this is normally drawn up by a notary in a form appropriate to the acts which the attorney-in-fact will be authorised to perform. If it includes powers relating to acts that require a public deed or an authenticated private document, the power of attorney must also comply with the form prescribed by law;
• Power of attorney for making a gift: this requires the presence of witnesses and a detailed description of the donee and the assets. The choice of donee or the subject matter of the gift cannot, in fact, be left to the attorney-in-fact (Article 778 of the Civil Code)

What do you need to draw up a power of attorney? Documents, timeframes and costs

To have a power of attorney drawn up at a notary’s office, you must provide the necessary documentation.

Checklist: what you need to draw up a power of attorney

To start the process, you will normally need:

• the donor’s identity document and tax reference number;
• the attorney’s personal details and tax reference number;
• information and documents relating to the action to be taken;
• documentation relating to the property, the estate or the company, where applicable;
• any documents relating to civil status or matrimonial property regimes, if required for the transaction.

Processing times

The processing time is generally short, but depends on the complexity of the powers to be granted and the completeness of the documentation. Once the text has been finalised, only the grantor needs to be present at the signing; the attorney does not need to be present.

Notary fees

The cost of a notarised power of attorney is not fixed. It depends on the type of power of attorney, the scope of the powers granted, the complexity of the transaction and any formalities required. A special power of attorney relating to a single transaction is normally simpler in structure than a general power of attorney, which must cover a range of powers and situations. The cost may also be affected by the presence of witnesses or an interpreter, and by the use of the power of attorney abroad. The practice will provide a quote after examining the details of the case. For further information, please write directly to the notary’s office.

Revocation of the power of attorney and grounds for termination

A power of attorney may be revoked by the principal, except in specific cases of irrevocability provided for by law. Where the power of attorney has been granted by a notarial deed, it is advisable to formalise the revocation before a notary, so as to document it with certainty and to enable any necessary formalities to be carried out. The revocation must also be notified to third parties by appropriate means: failing this, it cannot be invoked against anyone who has entered into a contract in good faith without being aware of it.

A power of attorney generally ceases to have effect in the following cases, subject to any exceptions provided for by law or in the terms of the document:

• completion of the act or transaction for which it was issued, in the case of a special power of attorney;
• expiry of any deadline;
• the death or subsequent incapacity of the principal or the attorney, except in the specific cases provided for by law;
• revocation by the principal.

FAQ – Frequently asked questions about notarised powers of attorney