General or special power of attorney: which suits a transaction in Spain

When you need someone else to handle a purchase, a sale or an inheritance in Spain, a familiar question arises: should the power be general or special?

The choice depends on what you want to delegate. A broad document may cover several matters; another may be confined to one specific transaction. Either way, the faculties and their limits have to be read.

The name of the power does not by itself determine what the attorney may do.

At MH Legal & Seguros we explain how to prepare that decision before going to the notary.

What the difference is between a general and a special power

The distinction turns on the sphere of matters covered.

A general power may cover a broad plurality of transactions or interests. A special power refers to one or several specific transactions.

Case law published in the Official State Gazette notes that the faculties cannot be established merely because the power has been labelled general or special: its terms and limits always have to be examined.

This comparison guides the preparation. It does not make one type of power automatically sufficient, or more suitable, than the other.

A general power does not mean permission for everything

The General Council of the Notariat explains that powers admit different configurations and require personalised drafting.

So before using a general power, check whether it includes the steps you need to carry out.

Do not assume, for instance, that an authorisation to manage property also allows it to be sold, mortgaged or used for any banking transaction.

The length of the document and the list of faculties have to be reviewed together.

A special power may cover several steps

Special does not necessarily mean a single signature.

It can be prepared for a specific transaction and cover the steps needed to carry it out, depending on how it is worded.

The Notariat contemplates powers for matters such as buying, selling, accepting inheritances or dealing with a bank account, listing the faculties to be granted. It also notes that some people prefer narrower powers, granted one at a time.

“General” and “express” are different questions

This distinction matters especially for acts of disposal.

The case law of the Directorate General separates:

• The sphere of business the power covers.
• The specific faculties granted in order to act.

A general power may include express faculties for acts of disposal. Equally, an authorisation worded in generic terms may prove insufficient.

The Civil Code requires an express mandate for acts such as selling or mortgaging, and article 1713 confines a mandate conceived in general terms to acts of administration.

Requiring express faculties to sell or mortgage does not mean that in every case each property must be identified individually: the content of the power and the intended act have to be analysed. So do not decide on the title of the document alone.

How to choose the scope according to the transaction

If you need to buy a home

Prepare a list of what the representative will have to do:

• Take part in preliminary contracts.
• Complete the acquisition.
• Organise the authorised payments.
• Carry out the later steps included in the engagement.

If financing is involved, say so from the start. Do not assume that buying and mortgaging are covered by the same faculties.

If you need to sell a property

Define the transaction and the instructions on:

• Price and conditions.
• Contracts and deposits.
• Collection of the outstanding amount.
• Handover of possession.
• Charges and later steps.

Check in particular whether the representative may negotiate, collect payments or acknowledge sums received.

If you need to deal with an inheritance

Identify which decisions you want to delegate.

Accepting, distributing, allocating, renouncing or selling inherited assets should not be treated as one undifferentiated authorisation.

Which limits to consider before signing

The preparation should make clear how much room the attorney will have. Points worth discussing include:

• The matters or assets covered.
• The relevant financial conditions.
• The intended duration.
• The appointment of one or several attorneys.
• How they are to act.
• Whether substitution is allowed.
• The steps you want excluded.

Not every restriction suits every file. They must be drafted consistently with the steps you need to complete. A poorly coordinated limit can block a necessary step; an authorisation that is too broad can grant room you did not intend.

The difference between limits in the power and instructions for the engagement

The power evidences the faculties of representation. Instructions organise how the attorney should carry out the task entrusted.

It is worth deciding which conditions belong in the document and which will sit in the instructions.

The resolution published in the BOE separates the formal sufficiency of the faculties from their incorrect exercise and from a breach of the duties arising from the engagement. Do not assume a private instruction always has the same effect as a limit written into the power.

Example: one specific purchase or several ongoing matters

Imagine two situations.

First: someone needs representation to buy a particular home and complete the steps tied to that acquisition.

Second: someone wants to delegate the management of several property matters in Spain for a period.

The needs differ. Before drafting, describe the steps and the room for decision the representative will have. The example does not by itself determine which document should be granted: it shows why preparation starts with the engagement.

Should you grant another power if you already have one?

Not necessarily. Provide the existing document so that the following can be reviewed:

• Its content.
• The restrictions.
• The persons appointed.
• Its validity.
• Whether it fits the new matter.
• The formalities if it was granted abroad.

An old power may still be useful, but it should not be used without review. Nor should a new one be granted without considering whether you want the earlier one to remain.

Review what happens when the task ends

When the transaction is complete, decide whether you need to keep the representation.

The Notariat notes that, as a general rule, the principal may revoke the power and that the notice and the return of the copia autorizada must be organised.

Do not assume a power stops having effect merely because the professional engagement has ended. Check its content and the steps needed to close the representation.

Frequently asked questions

Is a special power always safer?

That cannot be stated absolutely. Its usefulness depends on the faculties, the limits and the transaction.

Does a general power allow any property to be sold?

The express authorisation to sell and any restrictions on it must be reviewed.

Can several matters be included in one power?

A configuration covering them can be considered. Each need must be identified and the applicable requirements checked.

Should it be limited to a date?

It depends on the duration and the likely course of the file. It must be coordinated so that it does not expire before necessary steps are completed.

Can the notary help me choose?

The Notariat highlights impartial advice to adapt the power to the principal’s interests.

Choose the faculties from your own needs

Choosing between a general and a special power starts with defining what you need to delegate, who will act and which limits you want to set.

Preparing that list before the appointment makes better use of the notary’s advice and avoids adding faculties you do not need.

At MH Legal & Seguros we advise international clients on property and succession matters and coordinate the preparation of powers with the notaries and professionals involved.

Contact our team to review what scope your power needs for the steps planned in Spain.