How to draw up a continuing power of attorney

You can appoint a trusted person as an attorney to whom you want to trust the future management of your affairs. The attorney is often a person from the granter’s closest circles. However, they can be any person that you trust in particular. You cannot appoint a company, association or public guardian to be the attorney.

A secondary attorney should be appointed in a continuous power of attorney, in case the actual attorney becomes permanently incapable of acting as an attorney or is not willing to accept the responsibility. Several secondary attorney can be appointed. In such a case, the order in which the granter would like them to take on the responsibility should be mentioned in the power of attorney.

It is also good to appoint a replacement attorney in the power of attorney. A replacement attorney is needed when the actual attorney is temporarily incapable of carrying out the responsibility, for example, due to illness. The actual attorney may also be temporarily obstructed from carrying out the responsibility due to being disqualified. Therefore, the replacement attorney appointed in the power of attorney should be a person outside the closest family, who is not disqualified for attending to the matter. A conflict of interests may arise in the division of property or in the division of inheritance or when the granter’s property is sold.

The witnesses must be aware that the document is a continuing power of attorney but they do not need to know its content. The witnesses must be adults and understand the importance of being a witness. They must not be disqualified, i.e. not close relatives to the granter or attorney. 

A witness is disqualified if they are:

• the granter’s spouse 
• a child or grandchild of the granter or their spouse, or a spouse of said child or grandchild 
• a parent or grandparent of the granter or their spouse, or a spouse of said parent or grandparent 
• the attorney or their spouse
• a child or grandchild of the attorney or their spouse, or a spouse of said child or grandchild 
• a parent or grandparent of the attorney or their spouse, or a spouse of said parent or grandparent 

Spouses, as mentioned in this list, refer to marriage partners or partners that share an economy and live in marriage-like conditions. Disqualification of relatives also applies to half-relatives (such as half-siblings). 

It is important to ensure the qualification of the witnesses when the power of attorney is being signed. If a witness is disqualified, we cannot confirm the power of attorney.

When witnesses sign a power of attorney, they:

• write their date of birth, contact details and the time and place of witnessing next to their signature
• must state that they were both present at the same time when the power of attorney was made
• must enter a notification of the granter’s capability of understanding the meaning of the power of attorney 
• must make a note of other items that they think may affect the validity of the power of attorney.

The attorney may become disqualified for their responsibilities to represent the granter. This may happen, for example, if the attorney or the their close relative is the opposite party in matters such as This is the case, for example, when the attorney sells the granter's apartment and the buyer is a person close to attorney.

The attorney is disqualified from representing the granter if the opposing party in the matter is 

• the attorney personally, or their spouse 
• a child or grandchild of the attorney or their spouse, or a spouse of said child or grandchild
• a parent or grandparent of the attorney or their spouse, or a spouse of said parent or grandparent
• a child of the attorney’s parent or sibling
• another person the attorney represents.

If an impartial replacement attorney 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. Once we have confirmed their power, they can represent the granter in a case where the actual attorney is disqualified.

If you want the attorney to make donations on your behalf, for example to celebrate a next of kin, you must include the property that can be donated and to whom in the power of attorney. The attorney does not otherwise have the right to donate the granter’s property. 

The attorney must also be impartial when giving presents on behalf of the granter.

An rule must be written in the power of attorney if the attorney is to be granted the right to

• sell or otherwise transfer your properties
• apply to mortgage your properties
• establish a right of lien for your properties.

Instructions according to which the power of attorney will enter into force when the granter becomes incapable of managing their affairs because of an illness, loss of mental capacity, declining state of health or some other similar reason must be included in the authorisation. We cannot confirm the authorisation if this is not stated in the power of attorney. 

With the provisions in a continuing power of attorney, you can influence how the activities of the attorney are supervised.

• Property inventory
  • If the authorisation concerns the representation of the granter in their financial matters, the attorney must, at the start of their duties, provide the Digital and Population Data Services Agency with a list of the granter's assets and liabilities. No exception can be made to this in the power of attorney.
• Duty to keep accounts
  • he attorney must keep a record of the granter's assets and liabilities as well as the transactions in the financial year (the granter's financial affairs) and the actions they has taken on behalf of the granter (other affairs). No exception can be made to this in the power of attorney.
• Accountability to the Digital and Population Data Services Agency
  • The power of attorney may stipulate that the attorney must periodically (but no more than annually) provide the Digital and Population Data Services Agency with an account of the performance of their duties. Such an accountability is not required if it is not specified in the power of attorney. 
• Accountability to a private party
  • The power of attorney may stipulate that the attorney must, upon request or at regular intervals, give a private party an account of the performance of their duties. Such an accountability is not required if it is not specified in the power of attorney.
• Actions that require DVV approval
  • The attorney needs the Digital and Population Data Services Agency's permission to act on behalf of the granter only if so provided in the power of attorney.
• Final statement
  • The attorney must, without delay, provide an account of the performance of their duties to the party that will manage the granter's assets in the future. This may be, for example, the granter, their assigned guardian, a secondary attorney or the granter's estate. The final statement is therefore never submitted to the Digital and Population Data Services Agency.
  • However, it is possible to provide in the power of attorney that there is no obligation to provide a final statement. 

The power of attorney may specify the persons with whom the attorney may discuss matters that the authorisation provides for. If there is no such provision, the attorney is held to confidentiality and may not discuss these matters.

With a power of attorney, the attorney is entitled to manage your affairs. However, you can give the attorney more detailed orders or instructions on how they should use their power in matters that are important to you. Instructions may be related to selling property, its storage or the use of the assets. Such instructions are individual and they bind the attorney. It is a good idea to compile them into a separate document, which does not need to be submitted to us when confirming the authorisation. We may request them if we need to review the attorney’s activities.

You can issue provisions on the attorney 's remuneration and reimbursement of expenses in the power of attorney or in the instructions. You can also agree on them among yourselves. If they have not been determined or agreed on, the attorney 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. 

We cannot give the attorney more detailed or case-specific instructions for the amount of the remuneration. However, we may assess it, for example, in connection with an audit of the accounts or when the attorney’s activities have been reported to us.

There is no one specific model available for a power of attorney. Various templates are available online. However, when drawing up a power of attorney, you should ask an expert for help so that your individual situation is taken into account.

If the person has been diagnosed with a memory disorder, it is advisable to obtain a medical certificate on whether they is able to understand the significance of a continuing power of attorney despite the diagnosed illness. 

A diagnosis in itself, or when it has been given, are not relevant. The person’s ability to understand is what is most important. 

A person may be eligible to grant a power of attorney even if they have otherwise lost their ability to take care of their affairs. In this case, the power of attorney may exceptionally be confirmed immediately after it has been granted. 

For the sake of clarity, it is a good idea to have your own powers of attorney.

As such, the law does not limit the number of attorney. If there is more than one attorney and they have the same task, it would be a good idea for the continuing power of attorney to specify whether any of the attorney can represent the granter alone or whether the attorneys must act together. It is a good idea to consider this issue from a practical point of view, for example, do the attorneys always need to visit the bank / an authority together or can one of the attorneys act alone.