Continuing power of attorney

The general precondition for drawing up a power of attorney is that the donor has reached the age of 18 and is able to understand the significance of the power of attorney. The latter precondition must be understood to mean that the donor must be legally competent at the time they prepare the power of attorney document. In other words, even a very young person, but nevertheless a person with legal capacity over 18 years of age can draw up a power of attorney and prepare for unexpected situations that change his or her functional capacity, such as a traffic accident or an illness.

It would be wise to start preparing a power of attorney at latest when the initial symptoms of impaired functional capacity have already emerged. However, in this case, it may already be necessary to request a medical certificate to ensure that the donor is able to understand the significance of the power of attorney.

The affairs that must be managed are usually very ordinary daily matters, such as the payment of bills and managing property. The donee may be required to handle very important matters as well such as the sale of real property, housing shares or vehicles. If the donor has a business, the donee may, if necessary, take measures to organise the business activity. Examples are easy to find and list. 

When the continuing power of attorney is drawn up, it is a good idea to reflect on whether the donee is expected to make donations to the next of kin on behalf of the donor on their special days, for example. Under the law, the donee is entitled to give a present on behalf of the donor only if its justifications have been specified in the power of attorney. The donee does not otherwise have the right to donate the donor’s property.

The donee must also be impartial when giving presents on behalf of the donor.  

The donee may become disqualified for their responsibilities to represent the donor. This may happen, for example, if the donee or the donee's close relative is the opposite party in matters such as concluding a rental agreement, the sale of an apartment, division of inheritance or a donation.

Under the law, a donee is unable to represent the donor if the donee, the donee's spouse or someone else represented by the donee is the opposing party in the matter. The donee is also unable to represent the donor when a child, grandchild, sibling, parent, or grandparent of the donee's spouse or the spouse of any of these persons is the opposing party in the matter. The donee is also disqualified in cases where the opposing party is a child of the donee’s sibling or a sibling of one of the donee’s parents.

If an impartial replacement donee has been appointed in the power of attorney (for example, a person outside the family), the person in question can then apply for the confirmation of the continuous power of attorney for their part. When the authority has confirmed the part of the power of attorney concerning the replacement donee, the person is eligible to represent the donor in the matter in which the actual donee has been disqualified.

If the person making the power of attorney owns a real property and wishes to give the donee the right to

• sell or otherwise transfer the property
• apply for mortgaging for the property
• establish a right of lien for the property

specific instructions indicating this must be included in the power of attorney.

The donor may give instructions for the remunerations and compensation of expenses paid to the donee in the power of attorney or in the instructions. The donor and the donee may also agree on them between themselves. If they have not been determined or agreed on, the donee has the right to be receive compensation for the necessary expenses resulting from carrying out the responsibilities and a reasonable remuneration, the amount of which is affected by the nature and extent of the responsibility. The instructions issued by the Ministry of Justice for the fee paid to a guardian under the Guardianship Services Act cannot be directly applied to the duty of the donee and the remuneration charged by the donee.

The guardianship authority cannot give the donee more detailed or case-specific instructions for the amount of the remuneration. The sum of the remuneration may be assessed by the authority, for example, in connection with an audit of the accounts or when the donee’s activities have been reported to the authority.

Power of attorney will enter into force only after the guardianship authority has confirmed it. Read more about the prerequisites for confirmation here.

It is very important to keep the original continuing power of attorney document. The power of attorney should be kept in a place where the donee can access it when it is time to have the power of attorney confirmed. The power of attorney can be given to the donee to keep.

The original continuing power of attorney is not submitted to the guardianship authority until when it is confirmed. A continuing power of attorney cannot be given to the authorities for storage.

A continuing power of attorney can also be kept in a safe deposit box of a bank. In that case, it is important to ensure that the donee has access to the safe deposit box.

It is also important to keep the original document because the donee needs it even after the authority has confirmed the continuous power of attorney.  If requested, the donee must present the original power of attorney to the parties that they deal with on behalf of the donor.