Ike nke onye ọkaiwu (volmacht): ụdị, usoro na mgbe ọ kwụsịrị

A power of attorney (volmacht) is the authority you give another person to perform legal acts in your name, such as signing a contract or managing a bank account (Article 3:60 of the Dutch Civil Code, BW). Dutch law requires no special form for most powers of attorney, but it ends automatically on the death, guardianship, bankruptcy or debt rescheduling of you or your representative (Article 3:72 BW). Loss of mental capacity alone does not end it, which is why a lasting power of attorney (levenstestament) works when you can no longer decide for yourself.

Below we explain which types of power of attorney exist, how you draw one up so that banks, notaries and the Land Registry (Kadaster) accept it, where it is registered, and how and when it ends.

What is a power of attorney under Dutch law?

A power of attorney allows a representative to bind you towards third parties. The rules are in Articles 3:60 to 3:79 of the Koodu obodo Dutch: you are the principal (volmachtgever), the person you authorise is the attorney (gevolmachtigde).

A power of attorney can be granted expressly or tacitly (Article 3:61 BW), and a written document is not legally required. In practice you need one anyway: banks, the civil-law notary (notaris) and the Chamber of Commerce (KVK) want to see written proof before they accept the attorney’s signature.

The power of attorney is the authority towards the outside world. The internal arrangement, such as what the attorney must do and whether he is paid, is usually an agency agreement (lastgeving, Article 7:414 BW). That agreement obliges the attorney to account to you for what he has done (Article 7:403 BW).

You must understand what you sign when you grant the power. A power of attorney signed by someone whose will was disturbed, for example by advanced dementia, can be annulled (Article 3:34 BW).

Which types of power of attorney are there?

The main distinction is between a general and a specific power of attorney; a lasting power of attorney and a business power of attorney are variants with their own rules. Choose the type that fits the task, because a bank or notary checks whether the act falls within the wording.

General or specific power of attorney

A general power of attorney (algemene volmacht) only covers acts of management (daden van beheer), such as paying bills and managing an account. For acts of disposal, such as selling your house or granting a mortgage, the power must expressly describe that act (Article 3:62 BW).

A specific power of attorney (bijzondere volmacht) covers only the acts it describes, for example selling one apartment for at least an agreed price. It is easier to check and to revoke, and notaries generally prefer it for property transactions.

Lasting power of attorney (levenstestament)

A levenstestament is a power of attorney written for the situation in which you can no longer manage your own affairs. It usually covers your finances, your home and your digital accounts, and often medical matters as well. Under Article 7:465 BW you can appoint in writing a representative who decides on medical treatment when you are no longer able to.

The law does not require a notarial deed, but notaries strongly advise one: the notary checks your identity and your capacity, and banks often refuse a private document. The notary registers a notarial levenstestament in the Central Register of Lasting Powers of Attorney (Centraal Levenstestamentenregister, CLTR), kept by the Royal Dutch Association of Civil-law Notaries (KNB).

Notarial and private power of attorney

Most powers of attorney are private documents signed by you alone. For a property transfer, which must be done by notarial deed (Article 3:89 BW), the notary usually accepts a written power of attorney with a legalised signature. A notarial power of attorney gives more certainty about your identity and the date of signing, which is why banks often prefer it.

Business power of attorney

Companies give powers of attorney to managers, branch heads or employees who sign contracts. A company can register these authorised representatives (gevolmachtigden) in the KVK Trade Register, with the scope of their authority and any limit, such as contracts up to EUR 50,000. Third parties can then check the KVK extract before they sign. Our ụlọ ọrụ ndị ọka iwu advise on how to set up these authorities within a company.

Irrevocable power of attorney

As a rule, you can revoke a power of attorney at any time. An irrevocable power (onherroepelijke volmacht) is only possible if it serves the interest of the attorney or a third party, for example to complete a sale that has already been agreed (Article 3:74 BW).

How do you draw up a valid power of attorney?

Put the power of attorney in writing, describe the acts precisely and sign it yourself. Then check whether the bank, notary or authority that has to accept it requires a legalised signature or a notarial deed.

1. Decide what the attorney may do, for how long and up to which amount. Name one attorney or several, and state whether they may act alone or must sign together.
2. Name a substitute in case your attorney cannot act. The attorney may only appoint a substitute himself if the power of attorney allows this (Article 3:64 BW).
3. Draft the document with your full names, dates of birth, addresses, the acts described, any limits, the start date and, if relevant, the end date. Dutch wording avoids questions from Dutch banks and notaries; if you use another language, add a sworn translation.
4. Sign the document. Dutch law does not require witnesses. Have your signature legalised by a notary if the power will be used for a notarial deed, or have the notary draw up the deed itself.
5. Give a copy to the attorney and to the parties that will rely on it, and keep the original in a safe place or with the notary.

A third party that deals with your attorney can ask to see written proof of the authority. If the attorney cannot show it, the third party may refuse to do business with him.

Where is a power of attorney registered?

The Netherlands has no single register for all powers of attorney. Registration takes place per type, and for most private powers it is not needed at all.

• A notarial levenstestament is registered by the notary in the CLTR. The register records only that the document exists and with which notary, not what it says.
• Business powers of attorney can be registered in the KVK Trade Register, including any limit on the authority.
• For a property transaction, the power of attorney is attached to the notarial deed, which the notary registers with the Kadaster. The power itself is not registered separately.

What happens if the attorney exceeds his authority?

An act outside the power of attorney does not bind you, unless you approve it afterwards. That approval is called ratification (bekrachtiging, Article 3:69 BW).

If you do not ratify, the attorney is liable towards the third party for the damage, because he is deemed to guarantee that he had the authority (Article 3:70 BW). There is one important exception: if your own statements or conduct led the third party to reasonably believe that the attorney was authorised, you are bound anyway (Article 3:61(2) BW).

An attorney may not simply contract with himself on your behalf. Unless the power says otherwise, he may only act as your counterparty if the content of the transaction is so precisely fixed that a conflict of interests is excluded (Article 3:68 BW).

When does a power of attorney end?

A power of attorney ends on the events listed in Article 3:72 BW, when you revoke it, or when the attorney gives notice. Loss of mental capacity is not one of those events.

• The death, guardianship (curatele) or bankruptcy of the principal, or the application of the statutory debt rescheduling scheme (WSNP) to the principal.
• The same events on the side of the attorney.
• Revocation by the principal.
• Notice of termination by the attorney.

A power of attorney with a fixed end date or a single task also ends when that date passes or the task is done. Revoke it in writing and inform the attorney, your bank and anyone else who relies on it. If the power was a notarial levenstestament, have the notary draw up a deed of revocation so that the CLTR is updated.

If there is no levenstestament and you can no longer manage your affairs, your family must go to the subdistrict court (kantonrechter). The court can appoint an administrator for your assets (bewindvoerder, Article 1:431 BW), a mentor for personal and medical matters (Article 1:450 BW) or, in serious cases, a guardian (curator, Article 1:378 BW). Your family can take the same route if an attorney misuses a power that you can no longer revoke yourself; a guardianship order ends the power of attorney.

Can you use a Dutch power of attorney abroad?

Often, but foreign banks and land registries set their own requirements. Most countries ask for an apostille under the Hague Apostille Convention of 1961 and a certified translation.

The Dutch levenstestament is not automatically recognised in other countries. If you own property abroad, a separate power of attorney drawn up under the law of that country, alongside your Dutch document, is often the safest route.

What should you check as a principal?

You remain responsible for what your attorney does within the power you granted. Check these points before you sign:

• The document describes each act of disposal you want to allow, such as selling your house, because a general power only covers management (Article 3:62 BW).
• Limits are stated in figures, such as a maximum amount per payment or a minimum sale price.
• A substitute attorney is named for when your first choice cannot act.
• For a levenstestament, you have named a supervisor (toezichthouder) or required a second signature for large payments.
• Your bank or notary accepts the form you have chosen, private or notarial.
• You know how to revoke the power and whom you must inform.

What should you check as an attorney?

As an attorney, you act in someone else’s name and you must be able to account for every step (Article 7:403 BW). Check these points before you act:

• The act you are about to perform falls within the written scope of the power.
• The power has not ended through death, guardianship, bankruptcy, WSNP or revocation (Article 3:72 BW).
• You do not contract with yourself or a company of your own, unless the power allows it (Article 3:68 BW).
• You keep the principal’s money separate from your own and keep invoices and bank statements.
• You can show written proof of your authority to the bank, notary or other party.

What can we do for you with a power of attorney?

Our lawyers assist principals, attorneys, families and companies with drafting, using and challenging powers of attorney.

• We review your draft power of attorney or levenstestament and check whether every act of disposal is described.
• We draft business powers of attorney with clear limits and arrange registration in the KVK Trade Register.
• We assess whether an act by an attorney binds you, and whether ratification or a claim under Article 3:70 BW is possible.
• We draft the revocation and the letters to the attorney, the bank and other parties that rely on the power.
• We prepare the application to the subdistrict court for protective administration (bewind), mentorship or guardianship.

Summary

• A power of attorney (volmacht) lets someone perform legal acts in your name (Article 3:60 BW); Dutch law requires no special form.
• A general power only covers acts of management; selling or mortgaging property requires an express power (Article 3:62 BW).
• A levenstestament keeps working after you lose mental capacity; a notarial one is registered in the CLTR.
• A power ends on death, guardianship, bankruptcy or WSNP of either party, revocation or notice (Article 3:72 BW).
• Without a valid power, your family must ask the subdistrict court (kantonrechter) to appoint an administrator, mentor or guardian.

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