Surely most accountants have come across such a document as a power of attorney. This document is often prepared by the organization itself. In addition, you have to deal with this paper when working with counterparties.
It would seem that there is nothing complicated in registering a power of attorney. Moreover, in many companies the creation of this type of document is put on stream. It will be all the more useful to learn about the amendments to the Civil Code that came into force in September 2014 (for more details, see “Practical Accounting,” No. 9, 2013), which affected the requirements for a power of attorney.
The maximum period for which the powers of a representative are issued
Previously, the law established a limit for how long a power of attorney was issued - a maximum of three years. But with the adoption of the Federal Law “On Amendments to ... the Civil Code of the Russian Federation” dated 05/07/2013 No. 100-FZ, this norm was changed. According to the current Civil Code of the Russian Federation, the principal is not limited in choosing the duration of the action; no maximum or minimum limit has been established.
To whom should a power of attorney be issued?
A power of attorney can be issued to any employee of the enterprise or person “from the outside.” The main condition is that he is an adult and the principal does not doubt him.
From the moment the power of attorney comes into force, all responsibility for a particular matter entrusted under the power of attorney passes to the principal's representative.
It should be noted that most often powers of attorney for receiving and sending cargo are issued to:
- employees of transport companies involved in the transportation of inventory items;
- freighters;
- forwarders, i.e. those people who are responsible for the safety and integrity of the cargo during its delivery.
Simple
If the registration of powers does not require notarization, then the transaction is made in simple written form, certified by the signature and seal (if any) of an individual or legal entity. When determining the period of validity of a document, it is more advisable to proceed from the purposes for which it is issued, since by law the principal is free to choose.
There are several options for determining the time for which a power of attorney is issued:
- indicate a specific period, for example, two months or ten years;
- set a deadline, for example, until 12/31/2021;
- associate the duration of an action with a specific event, for example, when placing a one-time order.
Do you need a power of attorney? ConsultantPlus experts have prepared templates for different cases: for individuals and organizations. Use free access to find and download what you need.
to read.
How to cancel a document
The document expires automatically when the actions or powers set out in the trust have been performed in accordance with the agreed conditions, or if the person has refused to exercise such powers. It also happens that one of the persons dies - this accordingly leads to the cancellation of the document.
And the last reason is the expiration of the established period.
Let's look at an example: suppose you have issued a durable power of attorney to a person. But, circumstances have changed radically, and now you need to revoke the document, what to do?
If such a power of attorney was drawn up by the parties independently, without involving a notary, it is necessary to inform the other party about your intentions. Once informed, the attorney must return the document to the person who issued it.
All persons with whom the attorney interacted when exercising the powers specified in the power of attorney must be sent a notice of the early revocation of the document and the termination of its validity.
If the attorney refuses to return the document, know that you have the right to contact the police.
When registering the gen. of a power of attorney, everything is somewhat different, since a notary is involved in its preparation. Upon receipt of the review, the notary will record this on his own and notify the attorney. Be sure to pay attention to this, as it is important to follow the established procedure.
This is important to know: Extract from the Unified State Register of Participation Agreements (EPA)
Is it possible not to do all of the above and just pick up the paper?
Unfortunately no. You must understand that it is in your interests to carry out the revocation procedure according to all the rules, otherwise you will be responsible for all the actions of the attorney within the framework of the document drawn up. This can also have negative consequences.
The possibility of actually canceling a document is ambiguous; this is due to the fact that it is not always possible to identify all the persons with whom the attorney could interact. In this regard, we do not recommend that you draw up a power of attorney for a long period of time, since everything may change radically, and then you will have difficulty revoking these powers.
Expert opinion
Davydov Alexander Yurievich
Civil law consultant with 20 years of practice. Author of numerous articles on legal topics
In any case, before entrusting anything to anyone, you need to think carefully about everything, because this is a very responsible step, and you must understand this.
Notary certified
The rules of the Civil Code of the Russian Federation also apply to the validity period of a notarized power of attorney; in this case, it is limited by the will of the principal, but there is an exception. The validity of powers that are formalized by way of delegation do not exceed the period of the trust document on which they are based (Article 187 of the Civil Code of the Russian Federation). For example, if the powers of a representative are issued for six years with the right of sub-assignment, and after five months the re-assignment is made, then the maximum in the issued paper in the order of sub-assignment indicates five years and seven months, but it is allowed to indicate a shorter duration (clause 8.4 letter of the Federal Tax Service dated 07/22/2016 No. 2668/03-16-3).
Date of issue of the power of attorney, consequences of its absence
The date of execution of the power of attorney is a mandatory detail. Thanks to it, the beginning and end of the power of attorney are counted.
The absence of a date leads to the nullity of the document. The reason for establishing such consequences is the impossibility of determining the period for which it was issued.
The nullity of a document is of a nature that does not require filing a corresponding claim in court. Any counterparty who has studied it will come to the conclusion that it is impossible to establish the duration of the power of attorney, and will not enter into an agreement with the participation of this representative.
To represent interests outside the country
The answer to the question for how long a power of attorney can be issued to represent interests outside the country depends on the form of its execution (clause 2 of Article 186 of the Civil Code of the Russian Federation):
- if the document is notarized and the validity period is not specified, then it is valid until its cancellation;
- if it is a simple written form, then we apply the general rules: either during the specified period (this is also true in the case of notarization when such a period is indicated in the power of attorney), or one year from the date of commission.
How to calculate the validity period of a power of attorney according to the Civil Code of the Russian Federation in 2021
Due to the fact that the validity period is limited only by the wishes of the principal, the moment from which this period must be counted is important: from the moment of notarization. The date is entered there, and based on it it is necessary to count the period. It must be taken into account that the minimum term of a power of attorney from an individual is determined only by the principal and is counted from the same moment. But all of the above is relevant only for documents that indicate a specific validity period. If this is not the case, then the time period is always equal to 1 year. For example, if the question is how to calculate the term of a power of attorney for three years, then the countdown must be started from the date of notarization. Let’s say, in a situation where a document is issued for 36 months, and notarization occurs on March 20, 2021, then this document loses its relevance on March 19, 2024. An exception is made for papers oriented for actions abroad.
How long is it valid if the period is not specified?
The principal has the right not to indicate the validity period of the general power of attorney, like any other. The question then becomes, how long does it last? Answer: one year from the date of its registration. Indication of the date of commission is a mandatory requisite of this document, otherwise it is null and void, that is, it does not entail any legally significant consequences (clause 1 of Article 186 of the Civil Code of the Russian Federation).
It is important to remember that the principal has the right to revoke the authority of the representative at any time, with the exception of an irrevocable power of attorney. This must be done according to certain rules (Article 189 of the Civil Code of the Russian Federation):
- notify the representative and third parties known to the principal, to represent whose interests the document was issued;
- if the document was certified by a notary, then information about the cancellation is entered by him into the register of notarial actions;
- if a unilateral transaction is made in simple written form, then, if desired, the principal has the right to publish information about the cancellation in the official publication for information about bankruptcy. In this case, the signature on the cancellation application must be notarized.
In addition, other general grounds for termination apply (Article 188 of the Civil Code of the Russian Federation).
Article 186. Duration of power of attorney
Ruling of the Supreme Court of the Russian Federation dated 04/02/2019 N 304-ES19-2559 in case N A46-7533/2017 Canceling the decision of the trial court and refusing the claim, the appellate court, guided by the provisions of Articles 182, 183, 185, 186, 195, 196 , 199, 200, 203, paragraph 1 of Article 486 of the Civil Code of the Russian Federation, clarifications contained in paragraphs 15, 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N “On some issues related to the application of the norms of the Civil Code of the Russian Federation on claims prescription" (hereinafter referred to as Resolution No. 43), paragraphs 123, 124 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N "On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation", proceeded from the fact that the documents included in the basis for the conclusion of the court of first instance on the interruption of the limitation period, signed by an unauthorized person, in the absence of a duly certified copy of the power of attorney in the case materials, in the absence of further approval by the person represented of the relevant actions.
Ruling of the Supreme Court of the Russian Federation dated 06/07/2017 N 305-ES17-6102 in case N A40-137610/2016
The courts, based on the assessment of the evidence presented in the case file according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 183, 186, 309, 310, 779, 781 of the Civil Code of the Russian Federation, correctly established the circumstances of the provision of utility and operational services to the applicant in within the framework of the agreement concluded by the parties, the emergence of his obligation to pay them, the improper (partial) fulfillment of this obligation by him, having checked and recognized as justified the calculation of the substantive claim made by the enterprise in the absence of evidence of payment of the debt, we came to the conclusion that in this case there are legal grounds for satisfying claim.
Ruling of the Supreme Court of the Russian Federation dated June 13, 2017 N 310-ES17-6745 in case N A36-3407/2016
In accepting the judicial acts contested by the applicant, the courts were guided by the provisions of Articles 166, 186, 180, 424 of the Civil Code of the Russian Federation, paragraph 9 of part 1 of Article 10 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, part 2 of Article 162 of the Housing Code of the Russian Federation and proceeded from the absence of legal grounds for declaring the disputed clause of the contract invalid and collecting 298,378.72 rubles from the defendant. as unjust enrichment.
Ruling of the Supreme Court of the Russian Federation dated December 8, 2017 N 308-KG17-19154 in case N A53-4441/2017
In accepting the judicial acts contested by the applicant, the courts were guided by the provisions of Articles 166, 186, 180, 424 of the Civil Code of the Russian Federation, paragraph 9 of part 1 of Article 10 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, part 2 of Article 162 of the Housing Code of the Russian Federation, and proceeded from the fact that the contested management decision does not contain any restriction of Rostov Port JSC on the rights of any persons by concluding an agreement for the provision of services to ensure the transport security of individuals and vehicles.
