about “Power of Attorney”
A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent or, in some common law jurisdictions, the attorney-in-fact (attorney for short). (wikipedia)
In Spain a POA usually is signed in front of a public notary, although a POA signed in a Spanish embassy has the same validity. Also I often use POA signed in front of a foreign notary. In order to use this document in Spanish territory it should be translated in Spanish by an official translator, or – what I often do – be made up in the original language and in Spanish (in two columns), apart from that in order to be able to use it in Spain it must carry a so-called “Apostille of the Hague”. In a later post I will come back on the matter of the “apostilles of the Hague” as these are used quite a lot.
A power of attorney can be either a “Poder especial” (special power of attorney) or a “Poder General” (general power of attorney). (There are other kind of POA which I will explain in other posts). A “Poder especial” is issued for a specific purpose, for instance so that the agent can sell or buy a house name of the grantor, or accept an inheritance, it can be made up as limited or as ample as the grantor chooses. A “Poder General” (General POA) allows the agent to do anything in name of the grantor, dispose of all his/her properties, money, go to court, whatever, except some very personal issues “facultades personalísimas”, such as marrying or divorcing in name of the grantor, or signing a last will in name of the grantor. Apart from that you can limit the POA for Spanish territory or whatever country you feel necessary.
Signing a POA is really a matter of trust, there must be a complete trusting relationship between grantor and agent, as the latter could abuse the situation. Therefore it is important to be quite sure before you sign a POA about what you want to include and who you want to appoint as your agent. Also give clear instructions to the agent on how you want him/her to proceed with the POA. The agent is supposed to follow the instructions of the grantor and in any case act in interest of the grantor. In case the agent abuses of the situation and acts in his own interest it is possible to proceed and go to court but it’s not always possible to repair the damage.
Important: be careful, leave clear instruction in writing and never sign a POA in favor of someone you do not completely trust.
On the other hand most lawyers I know – and myself of course – when someone signs a POA in our name, for us this kind of proof of trust is a double motivation to act with most care and professionalism.
A POA can be cancelled at any time, and in any notary. The notary will notify the original notary office where the original POA was signed, and the agent. If a POA is not cancelled it will be valid until either the specific purpose for which the POA was signed has been fulfilled, the grantor dies, or the grantor is declared mentally unable. Normally this last circumstance automatically means the invalidity of the POA, unless the grantor specifically states that he wishes the POA to be valid also in case of legal incapacity.
El mandato se acaba:
- 1.º Por su revocación.
- 2.º Por renuncia o incapacitación del mandatario.
- 3.º Por muerte, declaración de prodigalidad o por concurso o insolvencia del mandante o del mandatario.
El mandato se extinguirá, también, por la incapacitación sobrevenida del mandante a no ser que en el mismo se hubiera dispuesto su continuación o el mandato se hubiera dado para el caso de incapacidad del mandante apreciada conforme a lo dispuesto por éste.
This is the article of the Civil code that must be included in case you want to sign a POA which you want to be valid also in case of legal incapacity.
I always recommend my clients to sign a general POA with this incapacity clause in name of someone they trust. In case of a married couple usually a mutual POA, or in name of a child, brother of sister. Most of us have seen cases of Alzheimer, dementia, coma or accidents. In these cases usually money is needed, families have to pay hospitals or special nursing homes, but the person for whom the money is needed cannot sign anything and the only way out seems to be going to court, which may take several months and high legal costs. All this can be avoided paying about € 100 for a notarial POA including the incapacity clause. Once signed just tell your family it’s there, hopefully you never need it, but if you do need it, it’s there and can be used. Also in case it gets lost, no problem., the notary will give you another authorized copy (as long it’s not cancelled as I mentioned before). Also here the grantor can leave instructions to tell the agent how to act in certain circumstances. This will allow the agent to administrate the assets of the grantor in case necessary.
Important: Include the incapacity clause and tell your family the POA exists, where you keep it, and in case it gets lost, at which notary it was signed, so a duplicate can be obtained when necessary.