What is a Power of Attorney?
A Power of Attorney, or a 'Poder Notarial' in Spanish, is written authorisation given to another person to represent you in all legal matters and transactions. If you are looking to buy or sell a property, for example, or you have to sort out probate or obtain a Spanish NIE number, you may need a Power of Attorney.
You need to think carefully before trusting someone with your Power of Attorney of course, but it is useful if you are unable to come to Spain, but you have transactions that need to be completed. You can revoke or cancel Power of Attorney if you need to, perhaps because you are not happy with the arrangement, but bear in mind that you will have to pay to do so.
The Power of Attorney process is simple enough. It is a mandate given in writing before a Notary, and executed as a deed by the donor (the person giving the Power of Attorney to someone else) in favour of a third party (the attorney). Once the third person has the Power of Attorney they are legally authorised to carry out certain acts on the donor's behalf. As the donor, you will have legal implications for anything that is carried out on your behalf.
Why Might I Need to Assign Power of Attorney?
If you do not speak Spanish and you are attending to the legal aspects of your residence, it is imperative that you have a good Spanish solicitor to draft your documents, using the correct terminology. The powers you give your attorney will differ substantially depending on what you are trying to achieve. If you are dealing with civil or criminal litigation for example, this will be different to buying and selling property etc.
It is worth checking out what Spanish powers of attorney will give you. You'll find that normally a Power of Attorney for the purchase of property will include clauses allowing the attorney to open, close and operate bank accounts, set up direct debits, make payments for the account, arrange utility contracts, pay taxes, submit forms and send and receive notifications to and from different authorities, etc., all eminently practical of course, so don't be surprised at how broad the remit is, and don't forget your liability. You are free to limit the scope of the Power of Attorney when you go before the Notary.
Who Can Be My Attorney?
Your attorney should be someone you trust. It can be a relative or a friend or a solicitor who you authorise to protect your legal interests. You can make the Power of Attorney as limited or as comprehensive as you want. If in doubt, your Spanish solicitor can advise about the extent of the power necessary for the transaction you wish to make.
How Much Power Will They Have?
While the Power of Attorney does have wide-ranging powers, they are required to strictly adhere to the donor's instructions. They cannot act beyond the powers given them by the Notary. They are also required to render accounts to you as the donor and pay you what you are owed. In the case of negligence by the attorney, they would have to pay the donor damages.
One thing to watch out for: it is feasible to the attorney to include clauses allowing him or her to appoint a replacement to exercise any or all of the powers given to him by the donor. If you are unhappy with this, ask the Notary to remove those clauses.
How Do I Arrange a Power of Attorney in Spain?
You can make a Power of Attorney in two ways.
In Spain you should approach a Public Spanish Notary. You can do this with your solicitor who can also provide translation services for the document as they will be written in Spanish. Arrange an appointment with your nearest Notary, and to explain to the Notary's clerk what the purpose of the Power of Attorney will be. You then provide all relevant personal details. Make sure you always take your passport and NIE with you.
You can also make the arrangement from the UK. The document will be created by your Spanish solicitor, in both English and Spanish. A Notary in the UK can then witness your signature. In the UK as in Spain, this is a very special function that cannot be undertaken by a solicitor or a Commissioner for Oaths, it can only be completed by a Public Notary.
You can attend the Spanish Embassy in the UK and avail yourself of the Notary Service there.
Foreign documents are not accepted by a Spanish Public Notary unless they have an official stamp, certifying that they are genuine, known as an Apostille. Apostilles are usually issued by the Foreign Office. This standardised legalisation procedure is only valid between countries who are part of the international treaty known as "The Hague Convention of 1961", and therefore the stamp is known as the Apostille of the Hague.
If you choose to arrange Power of Attorney from the UK, you should note that all documents issued by a foreign authority to be used before a Spanish Public Notary or any other Public Authority must be translated by an official sworn translator who has been registered in the corresponding Ministry of Foreign Affairs. Fortunately, the sworn translator will also sign and stamp the documents they are responsible for, so they not only translate but also certify the contents of official documents.
When Does the Power of Attorney End?
While there is no expiry date for your Power of Attorney, it would usually be finished once the process is complete. This can take longer than you might expect which is why it is not time-limited. However, you can ask your Notary to include an end date if you wish.
The Powers of Attorney will be automatically terminated by your death (or the attorney's death). If the transaction you were pursuing has not been completed, your beneficiaries will need to find their own Power of Attorney.
The Power of Attorney is also terminated by a declaration of insolvency or loss of capacity, and the attorney may resign at any time of their choosing. If you as the donor wish to revoke the Power of Attorney, you will need to execute a Deed of Revocation of Power of Attorney.
Cost of Power of Attorney
The cost to set up Power of Attorney can vary and will also depend on whether you are arranging it in Spain or from the UK. As a rough guide, getting Power of Attorney locally in Spain may cost around €100. If setting it up from the UK, you may be looking at around £200.