In various situations during your time in Spain, you may find yourself in a position where you are unable to advocate for your own rights or protect your interests. It is at these times that you may need someone else to make decisions on your behalf. While ideally, this appointed individual would act in your best interest, there is always the possibility of them acting against your wishes. To guard against such scenarios, a preventive or lasting power of attorney can be invaluable. In this article, we provide a comprehensive guide to understanding and obtaining this type of power of attorney in Spain.
What is a Preventive or Lasting Power of Attorney in Spain?
In Spain, a “poder preventivo” is a legal document that designates a representative of your choice. This document is signed in the presence of a notary, granting the designated individual the authority to act on your behalf and safeguard your interests in the event that you are unable to do so. It is the Spanish equivalent of a Lasting Power of Attorney in England and other Common Law jurisdictions.
Why Might You Need a Preventive or Lasting Power of Attorney?
This form of representation is typically sought when individuals experience mental incapacitation due to conditions such as cognitive degeneration, senility, or diseases like Alzheimer’s.
Utilizing the Power of Attorney
A preventive or lasting power of attorney is particularly useful in various circumstances, especially in financial and transactional matters. For instance, it enables your representative to handle payments, accept or make financial transactions, and even oversee property sales.
The Consequences of Not Having a Lasting Power of Attorney
Without a lasting or preventive power of attorney in place, a judge must evaluate the situation and, if deemed necessary, appoint a curator to act on your behalf. Unfortunately, this process is often time-consuming and can hinder your ability to access funds required for essential purposes, such as care or medical expenses.
The Advantages of Obtaining a Lasting or Preventive Power of Attorney in Spain
By acquiring a lasting or preventive power of attorney, you expedite the decision-making process and eliminate the need for a court order to appoint a curator. Additionally, you can have peace of mind knowing that the designated person is acting solely in your best interests.
The Procedure to Obtain a Lasting Power of Attorney
To secure a lasting power of attorney in Spain, following these steps is crucial:
Selecting Your Representative: The first step is designating someone you implicitly trust to act as your representative. While there are no legal requirements regarding the relationship between you and your representative, many people choose their spouse or lawyer for this role.
Consulting with Your Lawyer: Seek legal assistance to draft a lasting power of attorney tailored specifically to your needs and specifications.
Demonstrating Mental Capacity: At the time of signing the power of attorney, you must exhibit full and independent mental capacity in the presence of a notary.
Signing the Power of Attorney: Arrange an appointment with a notary and sign the power of attorney. Your designated representative is not required to sign the document.
The Various Types of Lasting Powers of Attorney in Spain
Spanish law recognizes two types of preventive powers of attorney:
1. General Preventive or Lasting Powers of Attorney
This type of power of attorney is comprehensive and does not limit the areas of representation. It typically grants your designated representative the authority to administer your assets.
2. Specific Lasting Powers of Attorney
Alternatively, you may prefer a more detailed power of attorney that focuses on specific matters. It can be limited to financial affairs, personal care, medical treatment, or any combination thereof.
Moreover, the timing of when a power of attorney becomes operational can vary:
- Independent of Time: This power of attorney allows your representative to act on your behalf at any time, regardless of whether you are mentally disabled or not.
- Dependent on Time: This power of attorney only becomes valid when you are officially recognized as mentally disabled, as stipulated in the medical conditions outlined within the document.
Can You Change Your Designated Representative?
Absolutely. You have the right to revoke the power of attorney at any time in the presence of a notary. If you wish to appoint an alternative representative, you will need to sign a new power of attorney.
What Should You Do Next?
Choosing someone to act on your behalf and protect your interests is a significant decision. For expert legal advice and guidance in selecting the right representative and determining the extent of your lasting power of attorney, look no further than Garrity Traina. Visit our website for more information or to schedule a no-obligation consultation.
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