11.01.2024

HOW CAN A GIVEN POWER OF ATTORNEY BE WITHDRAWN AND ITS EFFECT TERMINATED?

If there were statistics, powers of attorney would probably be one of the most widely issued documents in Bulgaria. There is hardly a person who, at least once in his life, has not had to authorize a relative, relative, friend, lawyer to be represented before an institution or company - be it before a court, before the Ministry of the Interior, before a notary, before suppliers of electricity, heat, water, etc.

The power of attorney is usually given easily - write the authorized person, the leg data, what exactly is authorized to do on behalf of the power of attorney, sign, indicate the date and place. However, when it comes to withdrawal, things are more ambiguous and complicated.

According to the Law on Obligations and Contracts, one person can represent another either by the provision of law or by the will of the represented person. The power of attorney enters into the second hypothesis - by the free will of the authorizer. And here comes the important and dangerous thing - "the consequences of the legal actions that the representative performs, arise directly for the represented". This means that if a general, general power of attorney is given for everything, it can really lead to adverse consequences. That is why it is also good that the powers of attorney issued are for precisely defined, specific, listed things.

According to the Law on Obligations and Contracts, "the principal has the right to always withdraw the power of attorney, and the agent has the right to renounce it." The law also states that the power of attorney is terminated by its withdrawal or renunciation, by the death of the authorizer or the proxy, or by placing them under interdiction, and when the authorizer or proxy is a legal entity - by their termination.

Said like this, it sounds easy, but in practice and in very specific cases, this is not exactly the case at all. Because many questions arise - for example, how exactly is the termination done, in what way, from what moment does it come into force, what is the effect of the withdrawal in relation to the third parties with whom the authorized person has contracted or is contracting, etc.

The easiest and simplest option is to take the power of attorney, then destroy it as a document, including physically. However, it is possible that this cannot be done - because of the refusal of the proxy or if the latter claims to have lost it. In this hypothesis, there is also the possibility that he made copies and the fact that the power of attorney was confiscated does not matter at all and the power of attorney misused a copy. Therefore, it is best to act through a notarial invitation. It is drawn up in the notary's office and sent by post or courier to the attorney. After receiving it in the notary's office, the return receipt is returned. The authorizer receives a copy of the invitation, in which it is noted when it was drawn up and when and by whom it was received. In this way, he is provided with a document that the proxy has been notified of the withdrawal of the power of attorney and that he has learned about it.

The last - that he learned is very important. In this sense, the judicial practice is also. For example, according to decision No. 1939 of 2002 of the Supreme Court of Cassation, it is expressly noted that "the unilateral declaration of will to withdraw a given power of attorney, in order to achieve the intended effect, must unconditionally have reached the authorized person". Otherwise, the consequences of the legal actions that the representative has performed have arisen directly for the represented. In addition, the termination of the power of attorney cannot be opposed by third parties who have contracted with the power of attorney in good faith. Then it will be the burden of the authorizer to prove the bad faith of the third party.

The problem is more complicated if the proxy cannot be found. Then the best option is to spread the word to as many people and institutions as possible that the power of attorney is being terminated. If, for example, a power of attorney was given to withdraw an amount from a specific bank - to notify the bank itself. Or if the property is sold through brokers - to notify the brokers, etc.

From the moment the agent learns of the withdrawal, but continues to act as such, he owes compensation to the bona fide parties affected. However, such compensation will have to be claimed in court.