Is an undated power of attorney indefinite, or does it last five years?

If you have authorised someone to buy a home, deal with an inheritance or handle matters before the tax agency, an important question can arise: until when may they act in your name?

The answer depends on the type of power, on its content and on the system where it is used. There is no single rule saying that every power lasts five years, or that every power without a closing date is indefinite.

At MH Legal & Seguros we explain how to tell the validity of a notarial power from that of an electronic representation before the Spanish tax agency — the AEAT.

The first check: which authorisation did you grant?

Before calculating an expiry date, identify the document and its scope.

It may be:

• A notarial power for one transaction or several matters.
• A representation registered in the AEAT electronic register.
• A power registered in another administrative register.
• An authorisation for one specific step.

A notarial document and its use in an administrative register may be connected, but their rules on validity must not be confused.

Does a notarial power expire after five years?

There is no general five-year expiry for all notarial powers.

Official information from the FNMT states that, where the power itself fixes no limit in time or by reference to the object of the mandate, notarial powers do not expire simply with the passage of time.

A power granted more than five years ago should therefore not be discarded merely because of its age.

That does not prove it can still be used either. Its content has to be checked, together with whether it was revoked and whether anything has affected its effectiveness.

No closing date does not mean valid for ever

The absence of an expiry date must be distinguished from the grounds for extinction.

The Civil Code sets out several grounds on which the mandate ends, besides revocation, with particularities for certain cases, including preventive mandates.

• Revocation by the principal.
• Renunciation by the agent.
• Death or insolvency proceedings of either party.
• Support measures affecting the act in which the agent must take part.
• The appointment of a representative curator for the principal, save in preventive mandates.

Before using an old power, also check whether it sets a term, whether it is limited to one transaction, whether the planned step is covered and whether it was revoked or replaced in relevant circumstances.

Having no expiry date is not the same as being able to use the document for any future transaction.

How long does a representation before the AEAT last?

The AEAT’s current online registration instructions state that, if the proposed closing date is not changed, the representation will last five years, which the same page describes as the maximum term.

The page applies that setting both to general registration and to certain specific procedures.

So leaving the field untouched should not automatically be read as creating an indefinite authorisation.

To know the position on a specific representation, consult the register and the registration receipt.

Why do some instructions mention an indefinite term?

The AEAT help pages contain a difference worth knowing. While the registration instructions describe five years where the date is not changed, a page on access to notifications through a representation still states that leaving the date blank means an indefinite authorisation.

At the date of this review the difference remains, and the consultation and extension page again states five years where no date is specified. These statements should not be presented as one coherent rule.

The practical check is to:

• Open the detail of the existing representation.
• Review the closing date recorded.
• Check its status and the procedures covered.
• Compare the receipt and the notices of the procedure used.
• Ask the AEAT for clarification if a discrepancy persists.

For a new registration, check the date expressly before signing. For an old power, do not infer its expiry from a guide alone.

How to check the validity of your representation

The AEAT allows the powers granted to be consulted using the accepted identification systems.

The search can be filtered by agent, status, procedure and validity date. Opening the reference number shows the detail of the authorisation.

Check every relevant procedure. A person may hold several authorisations, and reviewing one does not confirm the status of the others. Keep the receipt for any change.

Can it be extended before it expires?

Yes, under the available procedure.

The AEAT’s current help allows representations to be extended from two months before expiry and up to the expiry date itself, and describes extensions of up to five years from the date they are made.

If the authorisation has already expired, check the procedure for re-enabling the representation.

Do not assume automatic renewal, and do not assume that filing a return extends the authorisation by itself.

The five years also appear in other administrative registers

The rules of the Electronic Register of Representations of the General State Administration — REA-AGE — set a maximum validity of five years from inscription and provide for extensions with their own limit, also five years.

That rule should not be transferred automatically to any notarial deed.

Before applying an administrative term, identify the register and the authorisation it refers to.

A valid authorisation may not be operative for everything

The date is only part of the review. You should also check:

• Which steps are authorised.
• Before which authority.
• Who appears as the agent.
• Whether acceptance is required.
• Whether that acceptance has been completed.
• Whether the professional service covers the work.

For receiving electronic notifications, the AEAT provides for the agent to confirm the power in order to complete its activation.

A future closing date does not by itself prove that any given procedure is authorised.

Example: an undated deed and an electronic authorisation with an expiry

Someone grants a notarial power with no closing date for certain matters in Spain. An authorisation is then registered with the AEAT with an expiry date. As that date approaches, two things need reviewing:

• Whether the notarial power is still effective and sufficient.
• Whether the electronic authorisation needs an extension or a new registration.

The expiry recorded with the tax agency does not on its own mean the notarial deed has ceased to have any effect.

Equally, an unexpired deed does not show that the electronic access is still active.

What if the representation is no longer needed?

There is no need to wait for expiry to review whether it should continue.

As a general rule, the notarial power may be revoked, arranging the corresponding communication and documents.

Administrative authorisations must also be handled in the relevant system. Coordinate the changes with notifications, open files and pending deadlines.

Frequently asked questions

Does an old notarial power stop working automatically?

No. Its age is not enough to decide that; its content and effectiveness have to be reviewed.

Are all undated powers indefinite?

No. It depends on the document, the procedure and the applicable rules.

Can I treat a GENERALNOT representation as permanent?

Better not. Check its closing date, status and acceptance, especially given the differences between help pages.

Is the expiry of the electronic certificate the expiry of the power?

They are different things. Electronic identification and the representation authorisation have to be checked separately.

Does changing adviser remove earlier authorisations?

That should not be presumed. Review the existing powers and representations expressly.

Check validity before you need the representation

Checking a power is not just looking at the date it was signed. Its content, the register where it is used and its current status all have to be identified.

It is worth doing before the representation is needed, and not once the timetable for a transaction is already running.

At MH Legal & Seguros we advise international clients and coordinate the review of powers and authorisations with notaries and the professionals involved.

Contact our team to review the validity and scope of your powers for matters in Spain.