Lasting Powers of Attorney and Greek Law: Why a Greek Power of Attorney Cannot Be Relied Upon After Loss of Capacity
Clients with assets in Greece increasingly ask us to prepare a power of attorney that will continue to operate if they lose mental capacity – the equivalent of an English lasting power of attorney, or a mandate of the kind recognized under the 2000 Hague Convention on the International Protection of Adults. The request is understandable: it is now standard planning in many jurisdictions. Under Greek law, however, such an instrument does not exist as a recognized category, and a Greek power of attorney drafted to survive incapacity should not be relied upon for that purpose. This article explains why.
1. The power of attorney ceases on incapacity
Article 223 of the Greek Civil Code provides that a power of attorney ceases upon the supervening legal incapacity of the principal, “unless the contrary is inferred”. The leading commentary (Georgiadis, commentary on Article 1676 of the Civil Code, nos. 28–30) confirms that, as regards the principal, both full and partial incapacity bring the authority to an end.
The words “unless the contrary is inferred” are the only basis in the Code for an authority that continues after incapacity. They create an interpretative exception, to be established case by case, not a distinct type of instrument that the law recognizes and that third parties are bound to accept.
2. The underlying mandate is terminated by judicial support
A power of attorney does not stand alone. In practice it rests on a mandate between the principal and the attorney, and Article 726 of the Civil Code – as adapted when Greece introduced its judicial support regime (δικαστική συμπαράσταση) – provides that the mandate is terminated when either party is placed under judicial support in any form, including the lightest, auxiliary form.
The Explanatory Report to the reform makes clear that this was a deliberate legislative choice. The court-appointed judicial supporter (or the principal acting with the supporter’s consent) is meant to be able to reassess the situation afresh and, where appropriate, renew the mandate. The legislature thus preferred court supervision over the automatic continuation of a privately granted authority.
3. The practical consequence
An instrument drafted to continue after incapacity therefore relies on an exception to Article 223 and sits uneasily with the express termination rule of Article 726 once judicial support proceedings are initiated. In our experience, Greek notaries, banks and the Land Registry are unlikely to accept acts performed under such an instrument once the principal’s incapacity is known. The attorney would also be exposed to challenge by the judicial supporter or, after the principal’s death, by the heirs.
A Greek power of attorney remains a useful and widely used instrument while the principal has capacity. It should not, however, be regarded as a reliable substitute for judicial support in the event of incapacity, or for succession planning in the event of death.
4. What to do instead
For clients with Greek assets who are planning for incapacity, the realistic framework is as follows:
• A Greek power of attorney for the period during which the principal retains capacity, limited to Greek assets and governed by Greek law, alongside separate local instruments in the other jurisdictions concerned.
• Judicial support as the mechanism that applies under Greek law on incapacity, with the supporter appointed and supervised by the court.
• Succession planning – a will and, where suitable, lifetime transfers – to address the position on death, when any authority ceases in any event.
Clients who hold lasting or enduring powers of attorney abroad should be aware that these instruments, however well drafted, will not displace the Greek rules in respect of Greek assets.
* The information is accurate to the best of our knowledge as at the time of writing. We have no obligation to update it. We accept no responsibility against any third party who is not a client of the firm and has not signed the terms of our engagement.