By Roser Coll, Spanish Solicitor and Partner at Probate in Spain by Temis & Co International Lawyers
Lasting Powers of Attorneys (LPAs) are well known legal documents in the United Kingdom: they are used when a Donor decides to appoint someone as his/her Attorney. This appointment will allow the Attorney to make decisions for the Donor in case of a loss of mental capacity. LPAs come with an important number of responsibilities for the Attorney, who can end up making difficult decisions about a person’ s finances or health and welfare. For example, moving the Donor into residential care.
Similar to the Lasting Power of Attorney, there are legal documents under Spanish Law with equivalent purposes, which can be granted by a Donor who owns property, bank accounts or other assets in Spain. These are known as “Poder Preventivo”, or Preventive Power of Attorney.
This document must be granted before a Public Notary in Spain. The Preventive Power of Attorney will become effective when the Donor is declared incapacitated by a Doctor, and it will allow the appointed proxy to deal with the financial affairs of the Donor with
immediate effect. This means that if the Preventive Power of Attorney contemplates the faculty of selling assets, the proxy will have the legal authority to do so, should the Donor need the proceeds of the sale for its maintenance and care.
A very common case is that of a father who suffers from a degenerative disease which impairs his mental capacity. Selling his holiday home in Spain may be the only solution in order to be able to afford the costs of placing him into home care in the UK. Ideally, the property should have been sold before the father’s loss of mental capacity.
However, this is often not the case and once this has occurred, the father is now no longer able to proceed with a sale or delegate such transaction over property via Power of Attorney to a relative or lawyer in Spain.
Should there not be a Preventive Power of Attorney signed when Donor is in full capacity, then the only option left for the family to
convey the property would be to enter into a two-level court proceeding that would ultimately result in a court order allowing
the family to deal with the sale. Needless to say, this is a long, time-consuming and expensive proceeding before Spanish courts
which can take up to 2 years, during which, the property is off the market and the Donor’s critical needs not catered.
If you have any questions about Spanish Wills, estate planning and the administration of estates with Spanish assets, contact Roser Coll by emailing info@probateinspain.co.uk.