At some point in your life in Spain, you may find yourself unable to defend your own rights or interests and as a result, need others to make decisions for you.
In the best-case scenario, this third person will act with your interests at heart. However, as we all know, the worst-case scenario – when that third person acts in their interests and against yours – is also a real possibility.
A preventive or lasting power of attorney in Spain avoids the worst-case scenario since you designate a representative who will act for you and only you. In this guide, we explain all you need to know about this kind of power of attorney.
What is a preventive or lasting power of attorney in Spain?
Known as a “poder preventivo” in Spain, it’s a document signed in the presence of a notary in which you name a third person as your representative. In the document, you give the third person the power to represent you and defend your interests should you be unable to. In this sense, it is the Spanish equivalent of a Lasting Power of Attorney in England and other Common Law jurisdictions.
Why might I need a preventive or lasting power of attorney?
This type of representation is typically used when someone becomes mentally disabled because of cognitive degeneration through senility or a disease like Alzheimer’s, for example.
Read our guide to inheritance in Spain
What sort of things is the power of attorney used for?
It’s necessary in a variety of circumstances, particularly financial – for example, to accept or make payments – or transactional, such as selling a property.
What happens if there isn’t a lasting power of attorney in place?
If the person with disabilities doesn’t have a lasting or preventive power of attorney, a judge must evaluate the situation and, if necessary, name a curator (representative) to act on their behalf. This process is usually drawn out, which, in our experience, does nothing to help the person who may need the funds from a property sale to pay for care, for example.
What are the advantages of getting a lasting or preventive power of attorney in Spain?
As well as speeding up the decision-making process, you also avoid needing a court order appointing a curator (representative) and you know that the designated person is acting in your interests.
What’s the procedure?
- Choose your representative: the first step is obviously to designate your representative. Select someone you trust implicitly, but there are no legal requirements as to whether this person should be a relative, friend or objective third party. Many people designate their spouse or their lawyer.
- Check with your lawyer for the drafting of your lasting power of attorney according to your specifications.
- You must show you have full and independent mental capacity at the notary.
- You book an appointment with the notary and sign the power of attorney. Your designated representative does not need to sign the document.
Are there different types of lasting powers of attorney in Spain?
Spanish law allows for two types of preventive powers of attorney as follows:
General preventive or lasting powers of attorney
As the name suggests, this type of power of attorney is generalised and does not specify particular areas of representation. It typically states that the designated representative has the power to administer your assets.
Specific lasting powers of attorney
You may prefer to make a more detailed power of attorney, perhaps limited to financial matters as described above, but you may be more specific and include matters concerning your personal care or medical treatment.
Also, a distinction can be made regarding the time at which this type of power of attorney becomes operational:
- Independent of time of discapacity – you do not have to be mentally disabled for the power to be used by your representative. It gives the representative the power to act on your behalf at any time after you sign the document and beyond the moment the situation of disability arises.
- Dependent on time of discapacity – this power of attorney is only valid from the moment you become mentally disabled according to the medical conditions foreseen in the document.
What if I change my mind about my representative?
You can cancel the power of attorney at any time in the presence of the notary. If you want to designate an alternative representative, you need to sign a new power of attorney.
What should I do next?
Designating a third person to act on your behalf and defend your interests is not a decision to be taken lightly and we believe that expert legal advice will help you decide on your representative and the extent of the lasting power of attorney.
At Costaluz Lawyers, we’re happy to provide that advice. Get in touch for a no-obligation chat now.
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