Spanish Power of Attorney: to make sure that your assets are properly administrated in case you should lose capacity (through dementia, Alzheimer, etc).

Posted on by Carlos Baos

CONSULTATION:

I am English, and my husband is becoming increasingly less capable due to age and illness. Can he prepare a Power of Attorney to be used in Spain that would enable me to act on his behalf if needed?

Dear reader,

Thank you for your consultation.

In the UK, as far as we understand, it is no longer possible to create an Enduring Power of Attorney (‘EPA’), as it has been replaced by two types of Lasting Power of Attorney (‘LPA’), one to cover assets and financial affairs and the other to cover personal welfare.

There is no an exact equivalent of these in Spain, although a Spanish Power of Attorney (POA) can be signed to deal with the issue of incapacity.

As we have said in previous articles regarding the Spanish Power of Attorneys, the following must be considered:

1.- The POA ceases to have effect upon death, so once the grantor or donor of the POA passes away, it cannot be used any more, as the Spanish Power of Attorneys dies with him. Therefore the POA can not be used to deal with the inheritance of its grantor.

2.- Normally the POA will be automatically revoked in the event of the donor losing capacity, although a special POA can be granted that would continue to be valid even in that scenario.

We encourage all clients, especially the expat community in Spain, of any age, to review their affairs so that appropriate documentation can be prepared in a calm and non pressured environment. A Spanish POA can be drafted so that it only commences to have effect in the event of incapacity or, alternatively, an ordinary POA can be drafted so that it is not revoked by any subsequent incapacity. Ideally everyone should sign such a POA as it is relatively quick to prepare, inexpensive, and can then be confined to the bottom drawer in the hope it will never be needed.

We can assist you to prepare the best POA to your interests, and in favor of the person that you chose.