Power of attorney

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Bank power of attorney ( "account authorization") is the holder of an account over the account-holding bank granted power of attorney in favor of third, requiring a specific bank account may have the scope of the power of attorney. The beneficiaries of a power of attorney can be relatives of the account holder, third parties or employees of an account-keeping company.

General

The account holder and his / her legal representative ( parents as representatives of a minor account holder, carer , supervisor , board member of an AG, KGaA or managing director of a GmbH, for example) are automatically authorized to dispose of a bank account . Only the account holder is a creditor and as such has extensive rights. The account holder therefore has the option of expanding the group of persons entitled to dispose to third parties through legal transactions . This is civil law, on the representation ( ff §§ 164th BGB), commercially legally proxy ( § 54 HGB) or Prokura ( §§ 48 et seq. Dissolved HGB). The scope of the commercial bank power of attorney is described in more detail in the articles mentioned.

Legal bases

The civil law account authorization is a form of representation of § § 164 ff. BGB. The regulations there therefore also apply to the power of attorney. The law does not provide for a special form of power of attorney ( Section 167 (2) BGB), but credit institutions regularly require a written authorization.

The names of the persons authorized to represent and dispose of are to be made known to the credit institutes on special forms with personal signature samples. After granting the power of attorney, the authorized representative is entitled to conclude banking transactions in the name and for the account of the account holder. This means that the authorized representative's account is made for or against the account holder and that the authorized representative himself obliges him to do so, even if debit balances arise from this. Those authorized to dispose of it may use the account as much as the account holder himself - but only with effect for and against the account holder and the principal. Account dispositions in favor of the proxy are not covered by such a power of attorney. He may not use the account for his own payments (account lending or account misuse) or manage his own amounts owed to him via the account that is still third-party in order to conceal / obscure payments / payment flows ( money laundering ), tax obligations ( tax evasion ) or maintenance obligations ( Breach of maintenance obligation ) or to shorten or to deprive attaching creditors (then enforcement obstruction according to § 288 StGB) for the attachable part of their assets / income to which they are entitled.

Right of disposal means in particular the right to be able to make cash withdrawals or transfers , to issue direct debits or to allow direct debits or to accept transfer credits. These extensive rights show the relationship of trust that exists between the account holder and the authorized representative.

scope

As a rule, the power of attorney is unlimited. The “unrestricted disposal” only affects the power of disposal over account balances, but not over the account as such. Therefore, the authorized representative does not have all the rights to which the account holder is entitled. Authorized accounts only entitle the holder to carry out all transactions that must be closely related to account management. Common account transactions include:

If debit balances arise as a result of the dispositions of the authorized representative , the account holder alone is obliged and becomes the debtor of the bank from loans ( § 488 BGB). The authorized representative acts “for the account” of the account holder.

From the outset, the following are not covered by power of attorney:

These banking transactions are no longer closely related to the bank account, but are separate bank contracts to which a power of attorney does not normally extend. The transfer of an account to the name of the authorized representative is a change of creditor, which is not recorded by a bank power of attorney. An authorized representative is not himself a claim holder and is therefore not authorized to cancel or change the legal status of the account holder represented.

In exceptional cases, the account holder can restrict the power of attorney to the effect that an authorized person can only dispose of a specified amount or, for example, only commission transfers for the account holder. Further restrictions are also possible, since the scope of the power of attorney can be determined by the account holder and must be observed by the bank.

In the case of powers of attorney with joint disposal, a distinction is often made between “A powers” ​​and “B powers”. While A-authorized representatives can dispose of any other authorized representative, the B-authorized representative may only deal with an A-authorized representative.

species

Bank powers of attorney are differentiated according to whether the death of the account holder plays a role in the validity of the power of attorney. There is only an express statutory regulation regarding the effects of the death of the principal on the existence of a power of attorney for the power of attorney ( Section 52 (3) HGB) and the process power of attorney ( Section 86 1st half-sentence ZPO); there is no statutory regulation for the bank authorization . Therefore, the effectiveness of a bank authorization can be freely agreed. It depends on whether the legal relationship on which the bank power of attorney is based (i.e. the giro contract) expires through the death of the account holder ( § 168 sentence 1 BGB). Since the giro contract does not expire through the death of the account holder, the power of attorney generally continues to exist.

The power of attorney is not a substitute for a will and therefore does not affect the rights of the heirs.

"Transmortal bank authorization"

In Germany, an unlimited power of attorney (" transmortal power of attorney ") is also valid after the death of the account holder, so that the authorized representative may continue to dispose of them even after the death of the account holder ( § 672 in conjunction with § 168 BGB ). This is preferably used to protect the spouse or close relative so that in the event of the death of the account holder, seamless access to the testator's account is possible. However, this common practice is associated with a risk. If the authorized representatives do not later belong to the heirs , the real heirs can revoke existing bank authorizations in favor of third parties who are not authorized to inherit at any time with a certificate of inheritance or a certified will. In the event of inheritance, the non-inheriting authorized representative becomes the person of trust of the heir who takes on the legal position of the deceased account holder. In order to protect the surviving spouse or close relatives in the event of death, there is a better solution to the appointment of an heir , legacy or donation among the living or due to death.

Under Swiss law, this extensive power of attorney applies beyond the death or inability to act of the principal only if this is expressly provided for in the power of attorney.

"Prämortale bank power of attorney"

The extensive transmortal bank authorization is the normal case. The account holder can, however, make other arrangements with the credit institutions. In the case of power of attorney until death (“premortal power of attorney”), the bank power of attorney expires automatically upon the death of the account holder. This is a conditional power of attorney ( Section 185 (2) BGB), in which the death of the account holder leads to the immediate ineffectiveness of the bank power of attorney . For this reason, the bank must first check whether the account holder is still alive every time the proxy makes a ruling. Such powers of attorney automatically expire if the account holder dies. The credit institutions are exposed to high risks with this type of bank power of attorney, as they may allow dispositions by the bank representative even though the account holder has already passed away without their knowledge.

According to Swiss law, the power of attorney expires in the event of death, inability to act or missing of the principal, unless the principal has ordered otherwise (OR 35 para. 3).

"Postmortem bank authorization"

The power of attorney for the account in the event of death (“ post-mortem power of attorney ”) does not come into force until the account holder dies. The account holder grants this power of attorney during his lifetime as a power of attorney with a condition precedent ( Section 185 (1) BGB), in which the death of the account holder brings about the immediate effect of the power of attorney. This power of attorney can therefore not be used before the account holder dies. Such a power of attorney is usually granted for the later administration of the inheritance in favor of spouses or close relatives, so that they do not have to rely on the issuing of a certificate of inheritance or the submission of a certified will.

According to Swiss law, such powers of attorney are only valid for a short time after the death of the principal and, as soon as the agent becomes aware of the death of the principal, do not enable them to take more than urgent administrative actions. In addition, the power to act according to Swiss law is in any case transferred to the heirs , unless the testator has appointed an executor . This also applies to banks, even if there are bank powers of attorney to the contrary.

Abuse of the power of attorney

The power of attorney relationship between the account holder and the authorized representative represents a relationship of trust. This is violated if the power of attorney is misused by the authorized representative by gaining an unlawful pecuniary advantage to the detriment of the account holder through a transfer / withdrawal in his favor. That is why most abuses of bank powers of attorney take place among relatives and can be punishable by law (see account looting ).

If the heirs find that an authorized representative has withdrawn amounts up to the death of the account holder, the authorized representative bears the burden of proof according to the higher-level jurisdiction and is obliged to pay damages in the event of unfavorable evidence. In the case of withdrawals using a power of attorney from the account holder, the person making the withdrawal must prove the alleged legal reason for the withdrawal. The OLG Bremen was also of the opinion that an authorized bank representative who withdraws money from the testator's bank account must prove that there was a legal reason for this withdrawal and that he forwarded the withdrawn money as instructed. According to this, the payment claim is based on a claim originally due to the account holder against the authorized bank representative under Section 667 BGB or Section 812 (1) sentence 1 BGB. A contractual relationship was established between the account holder and his authorized representative in accordance with Section 662 of the German Civil Code (BGB) as far as the handling of financial matters for the account holder was concerned. It is incumbent on the authorized bank representative to prove that he has handled the withdrawn money as intended. If he does not succeed in providing this proof, the authorized representative is obliged to the account holder in accordance with Section 667 of the German Civil Code (BGB) to surrender to the account holder everything obtained from the agency, unless it has otherwise been used as intended. This must be presented and proven in accordance with the general rules on the burden of proof. Here, too, it is assumed that the burden of proof is distributed differently from the "normal case" in the event that the authorized representative has received a cash payment on the basis of a power of attorney granted to him.

The bank power of attorney is usually connected with the will to also agree on the resulting accounting obligations when the account power of attorney is granted. In cases in which a family member or acquaintance of the account holder is granted such power of attorney, it is assumed that the power of attorney is granted on the basis of a special relationship of trust. In the context of this relationship of trust, no information or accountability is usually required. The authorized representative should not subsequently be obliged to provide more precise accounting. In contrast to this, professionally appointed agents (nurses, supervisors) are legally obliged to submit accurate accounts.

A duty to provide information and accountability can result from good faith ( § 259 and § 242 BGB). This is particularly the case if the heirs are uncertain about the existence or scope of a power of attorney, but the authorized representative can easily provide the account holder with the information necessary to remove the uncertainty. If the authorized representative is also the beneficiary from account dispositions, an accountability is reasonable. In this case, an obligation to provide information and accountability is assumed, albeit one that is not regulated by law.

In addition, it must be clarified whether it is permissible for authorized representatives to make transfers to themselves and thus want to make an alleged donation . In any case, this does not fail due to the formal requirement of the promise of donation, which requires notarial certification according to Section 518 (1) BGB. The donation to the authorized representative is, however, also a case of self-contracting , because the donor concludes a donation agreement with himself as a representative of the account holder. Such "self-dealing" are ineffective according to § 181 BGB. The authorized representative is therefore not authorized to make such account disposals; the ruling is therefore pending ineffective until it is subsequently approved. The right to grant approval passes to the heirs upon death ( Section 1922, Paragraph 1 BGB). If the subsequent approval by the heirs is refused, the donation is void from the outset .

Under criminal law, such unlawful transfers / payments in favor of an authorized representative represent a case of embezzlement ( Section 246 (1) BGB). Since bank agents have a position of trust, there is even a qualified case of Section 246 (2) StGB with increased threat of punishment.

revocation

Power of attorney can be unilaterally revoked by the account holder at any time vis-à-vis the account-holding bank. The revocation leads to the immediate expiry of the power of attorney. Powers of attorney automatically expire without having to be revoked, in the event of:

  • Death of the authorized representative,
  • Incapacity of the authorized representative,
  • Opening of bankruptcy over the account holder's assets,
  • Death of the account holder ("premortal power of attorney")

With the death of the account holder, his heirs take the legal position of the account holder by way of universal succession ( § 1922 Paragraph 1 BGB) and are then entitled to "transmortal" or "postmortal" bank powers - especially if the authorized representatives are not among the heirs withdraw. It is controversial whether each co-heir can partially revoke the power of attorney with effect for himself or whether the revocation follows the legal regulations on the community of heirs (majority decision, only in case of emergency administration one for all).

According to Swiss law, the heirs do not need to revoke the power of attorney. The heirs, on the other hand, would do well to inform the authorized representative and the bank of the death of the principal and to request the return of any power of attorney, as otherwise they would have to deal with bona fide third parties with whom the authorized representative (be it with knowledge or ignorance of the death of the principal) still carried out legal transactions on behalf of the principal who were responsible for the damage (OR 36 para. 2).

Other legal aspects

  • Authorized persons are subject to the legitimation check according to § 154 Tax Code (AO). You must come up with an official photo document, e.g. B. legitimize identity card or passport .
  • Authorized accounts must be identified and documented for money laundering purposes by the credit institutions in accordance with Section 4 GWG .
  • The names of the authorized representatives are passed on to authorities as part of the account retrieval procedure .
  • Article 26 (3) of Regulation (EU) No. 600/2014 in conjunction with Section 22 of the Securities Trading Act (WpHG) stipulates that stock exchange transactions by authorized agents must be reported using their identification number and not that of the account holder.
  • The requirements of Section 63 WphG also apply to authorized agents. Before executing a securities transaction, the bank must inquire about the experience and knowledge of the authorized representative ("customer information for transactions in financial instruments" = WpHG form) and compare it with the risk of the intended transactions.

Whether power of attorney makes a power of attorney superfluous is debatable. The Federal Ministry of Justice (BMJ) therefore recommends declaring the bank power of attorney separately as an external power of attorney for health care proxy - which are internal powers of attorney .

literature

Individual evidence

  1. No. 4 (1) AGB-Sparkassen
  2. No. 20 (1) a AGB-Sparkassen
  3. ^ BGH, judgment of March 24, 2009, Az .: XI ZR 191/98
  4. ^ Karlheinz Schramm in: Herbert Schimansky / Hermann-Josef Bunte / Hans-Jürgen Lwowski, Bankrechts-Handbuch 3rd edition. Section 32 marginal no. 48
  5. Ute Lekaus, power of attorney from death , 1999, p. 7.
  6. BayObLG, decision of April 19, 2000, Az .: 1 Z BR 29/00 (FamRZ 2000, 1539)
  7. OLG Bamberg, judgment of February 25, 2002, Az .: 4 U 116/01
  8. OLG Bremen, judgment of December 10, 2009, Az .: 5 U 31/09
  9. OLG Bamberg, ZEV 2004, 207
  10. BGH NJW 2000, 3199, 3200
  11. ^ Higher Regional Court Düsseldorf, judgment of March 28, 2006, Az .: I 4 U 102/05
  12. Papenmeier: Transmortal and postmortal powers of attorney as a design tool, zerb Verlag, Bonn 2013, ISBN 978-3-941586-70-3 , p. 128 ff.
  13. Regulation (EU) No. 600/2014