What
is a Power of Attorney?
It is a legal document that appoints someone to undertake actions and execute documents on your behalf.
Can I grant a Power of Attorney to my
spouse or partner for Spanish assets?
Granting a power of attorney can be a practical solution where a spouse or civil partner works abroad and only one of the couple can attend in person when buying or selling property. Equally you may not be available in Spain to undertake all the legal work and to sign documents when dealing with property or assets in Spain.
In Spain a Power of Attorney must be signed before a notary public. The document can be executed in Spain or in England. The Spanish formalities for a power of attorney are dealt with under the notarial rules and their use is strictly governed by the Spanish Civil Code.
The Spanish Civil Code has strict rules on the use of powers of attorney. These include the obligation to only use the power on the instructions of the donee; the obligation to ensure proper record keeping and the duty to the donee to act in the best interests of the person granting the power.
Can a Power of attorney be misused?
It is important to know that a Spanish form power of attorney cannot be used if the granter loses mental capacity to make decisions about its use. Also it cannot be used after the death of the granter. The power can be specific to a particular act or more general with wide faculties to act.
You may have heard stories of the misuse of powers of attorney by agents or others so you should ensure that you are advised of any acts being undertaken on your behalf. It is always best to provide written instructions and to ask to be informed in writing of anything being done on your behalf so that no misunderstandings can arise.
For litigation purposes a very comprehensive power of attorney has to be granted to Spanish to Spanish lawyers – abogados – and court agents – procuradores – to present pleadings and pursue proceedings in the Spanish courts. There are regional colleges of lawyers and procurators who regulate the profession. The colleges are responsible for – deontologia – professional conduct rules which include rules on conflicts, ethics,
obtaining instructions and pursuing matters with due diligence including reporting to the client.
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