Beneficiaries of support administration, power of attorney is ineffective
Without the OK of the tutelary judge. The lawyer who receives the mandate is not, therefore, obliged to pay the costs
Key points
The power of attorney that the person subject to support administration gives to a lawyer, without the OK of the protective judge, is not non-existent but invalid. But the lawyer who acts in court under a title that is not 'effective' is not obliged to pay costs. The Supreme Court, in its judgment 5177/2026, upheld a lawyer's appeal against an order to pay judgment costs.
The affair
The defence lawyer had been hired by a woman to oppose before the judges precisely the argument put forward by her support administrator, aimed at proving her incapacity on the days when she had withdrawn EUR 99,000 from the Deutsche Bank to give it to a third party who, by virtue of a settlement agreement, had then returned the sum.
According to the Court of Appeal, the lawyer had to pay costs because he had acted on the basis of a power of attorney conferred by a client who lacked capacity. The act was, therefore, to be considerednon-existent.
For the lawyer, the only possible solution would have been to challenge the decree of the tutelary judge, considering it prejudicial to the administrator's prerogatives.
On the other hand, the Supreme Court of Cassation recalls that "in the event ofinvalidity or supervening ineffectiveness of the power of attorney ad litem, it is not admissible to order the defendant to pay the court costs, since the procedural activity is provisionally effective and the power of attorney, although null or invalid, is nevertheless - the judgment states - capable of establishing atrial relationship with the represented party, which assumes the role of potential recipient of the situations arising from the trial".
