Framtiden för privaträttsligt ställföreträdarskap - En avtalsrättslig analys av framtidsfullmakter

Sammanfattning: Swedish law acknowledges two types of powers of attorney: självständiga and osjälvständiga. This essay aims to determine how continuing powers of attorney apply in the pre-existing legal system by determining what type of power of attorney this new document would be and discuss why the classification matters in practice. The inquiry will use a legal dogmatic method, with focus on legislative history and juridical literature. Generally, legal acts within the agent’s apparent authority will bind the principal. Dependent powers of attorney provide less protection to third parties, since the principal is not legally bound by acts committed by the agent against the principal’s private instructions. Independent powers of attorney consist of visible facts from which a third party can predict what will legally bind the principal. Typically, third parties will be more trusting of independent powers of attorney, as private instructions will not constitute the apparent authority of the agent. Continuing powers of attorney are written documents and can function as a means of identification to confirm the authority of the agents when the principals are incapable of making decisions. In this regard, continuing powers of attorney are independent powers of attorney. Yet the agent’s authority is not entirely visible to third parties. Whether the document has come into force or not is unknown. In this regard, continuing powers of attorney share elements of a dependent power of attorney with less protection of third parties as a result. The Swedish legal system requires that continuing powers of attorney classify as one or the other. In conclusion, continuing powers of attorney must be considered independent. The current system may lead to low trust in continuing powers of attorney whose coming into force has not been established by a court. This risk is not necessarily present in all cases, as some third parties may trust that the agent has ensured that the continuing power of attorney has come into force.