The Notarised Power of Attorney That Outlived Its Purpose
On 3 February, Maria Petrova, aged 78, appears before notary Ivanov in Plovdiv to sign a notarial deed of sale of her apartment to her nephew Georgi for 95,000 BGN. She is accompanied by Georgi, who answers most questions and holds a yellowed general power of attorney dated 2019 by which Maria authorised him 'to manage and dispose of all my real property'. Maria's hands tremble and she twice asks where her late husband is. Georgi produces a recent psychiatric certificate stating she is 'oriented but highly suggestible'. The notary's assistant has already drafted the deed and the parties want it certified the same day because a bank valuation expires on 5 February. Maria's daughter Elena telephones the office during the appointment, objecting that the sale is far below market and that her mother has been diagnosed with early dementia.
1. How should notary Ivanov assess Maria's capacity to conclude a notarial deed of sale, and what are his duties and options before certifying it?
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The notary must satisfy himself that the party has the legal capacity and the actual ability to understand and direct her acts. The 2019 general power of attorney is irrelevant here: the sale is being concluded by Maria personally, so capacity is tested at the moment of certification, not through the earlier document. The psychiatric certificate is evidence but not decisive; 'oriented but highly suggestible' does not establish full transactional capacity.
Practical steps: (1) conduct the interview in private, without Georgi, and ask open questions about the property, the price, the buyer and the consequences of sale; (2) explain the deed aloud in plain language and record her answers; (3) note that the 95,000 BGN price appears below market and ask whether an independent valuation was obtained; (4) consider requesting a fresh, specific psychiatric assessment addressing transactional capacity; (5) if reasonable doubt remains, refuse certification and record the refusal in the register, since a notary who certifies a deed of an incapable person risks the deed being void and faces disciplinary and civil liability. The daughter's call should be noted but not treated as proof; it is a reason to probe further. Certification should not be rushed because a bank valuation expires.
2. Does the general power of attorney from 2019 authorise Georgi to buy the property himself, and what conflict-of-interest rules apply?
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No. A general power to 'manage and dispose' does not authorise self-dealing, and a representative cannot conclude a transaction with himself in his own name unless the principal expressly permits it. Even an express clause would not cure a situation where the agent is visibly steering an elderly, suggestible principal into a below-market sale to himself.
The notary must check whether Georgi is acting as buyer in his own name or as attorney; the deed cannot be drafted so that the same person appears on both sides without a clear, specific authority. The notary should also consider whether the arrangement is a gift in disguise or an abuse of a vulnerable adult, and should warn Maria of the right to independent counsel. If the notary proceeds, he must document the price, the absence of a valuation, the relationship and the warnings given. Refusal is the safer course where the only justification for speed is the expiry of a bank valuation.