A note on powers of attorney (poderes) in Spain, by Irwin Mitchell, a leading UK law firm with offices in Spain.
A power of attorney is a mandate given in writing before a notary public and executed as a deed by the donor (person giving the power of attorney) in favour of a third party (attorney).
It is a practical and common way of delegating authority. By virtue of the power of attorney the attorney is legally authorised to carry out certain acts on the donor’s behalf, which will have legal implications for the donor.
The identity of the donor will be always be verified by the notary upon execution of the power of attorney. At the foot of the document, the notary authorising the power of attorney will make a statement as to the donor understanding the contents and effects of the document and as to the document being executed before him.
The powers given by the donor may differ substantially depending on the transaction or legal act for which the power of attorney is necessary (civil or criminal litigation, property transactions, corporate transactions, inheritance matters, etc…).
Spanish powers of attorney normally give the donor very broad powers to deal with the specific transaction. As an example, a power of attorney for the purchase of property will often 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….
This is mainly done for practical reasons so that the attorney may carry out all the necessary completion and post-completion arrangements. It would be very inconvenient for the donor if he had to authorise each arrangement separately. However, the donor is always free to instruct the notary to limit the scope of the power of attorney as much as he wishes.
Most powers of attorney do not contain an “expiry date” upon which the document ceases to be valid. This is mainly for practical reasons since sometimes the transaction or legal act may take longer than anticipated and it would be hugely inconvenient if the power of attorney was to expire before the transaction has been completed in full.
Having said that, if the donor so wishes, he may ask the authorising notary to include an expiry date in the power of attorney.
Powers of attorneys are automatically terminated (revoked) by death of the donor or the attorney. It is important to note that the attorney is not allowed by law to use the power of attorney once the donor has died. If the particular transaction has not been completed the beneficiaries would need to give a new power of attorney allowing the attorney to continue (subject to inheritance arrangements).
The power of attorney is also terminated by declared insolvency or loss of capacity of either the donor or the attorney. The attorney is free to resign at any time.
The donor can also revoke the power of attorney and any time. However this needs to be done by executing a Deed of Revocation of Power of Attorney. The Deed of Revocation does not need to be authorised by the same notary before whom the power of attorney was executed. After execution, the notary will notify the attorney of the revocation.
It is always advisable to revoke the power of attorney once the mandate has been completed and to ask the attorney to return to the donor the original Deed of Power of Attorney and any copies that he may have obtained from the Notary’s office.
The attorney must strictly follow the donor’s instructions and is forbidden to act beyond the powers given in the power of attorney. The attorney also has the obligation to render accounts to the donor and to pay to the donor any amounts given to him by virtue of the power of attorney.
The attorney would be responsible for any damages suffered by the donor as a result of the attorney’s negligence.
Sometimes powers of attorney include substitution clauses by which the attorney has the power to appoint a replacement to exercise any or all of the powers given to him by the donor. The donor can ask the authorising notary to remove such clause if he wishes, particularly if he wishes the individual attorney to act on his behalf.
As a general rule, the donor is responsible for all acts of the attorney done within the attorney’s authority and so the donor must fulfil any obligations to which the attorney has committed on the donor’s behalf (if these are within the scope of the power of attorney).
The donor has the obligation to advance to the attorney any amounts which are necessary for the performance of the mandate and to reimburse the attorney (with interest) if he used his own money.
The donor also has the obligation to compensate the attorney for those damages suffered by the attorney in the performance of the mandate (if there is no negligence by the attorney).
The attorney has the right to retain property belonging to the donor until he has been reimbursed for his expenses or compensated for his damages.
Yes there is: Powers of attorney always involve a risk, so it is fundamental that the attorney is a reliable individual or professional firm who will follow strictly the donor’s instructions at all times with the utmost diligence.
If you are in Spain find your nearest notary here and arrange an appointment. You will need to explain to the notary’s clerk the purposes of the Power of Attorney and provide your and your attorney’s personal details (full name, passport or ID number, address, marital status). When you attend the notary’s office always bring your passport with you.
Contact your nearest Spanish Consulate, they will provide you with a list of English notaries specialised in Spanish matters. Or contact Susana De Las Cuevas Nagle, of Irwin Mitchell in London, contact details below.
A notary practising in the UK may charge in the area of £250 plus VAT for drafting a bilingual Power of Attorney and witnessing its execution by the donor/s.
If the Power of Attorney has already been prepared by a Spanish Lawyer, the notary would only charge for witnessing the execution of the documents and his/her fee may vary between £90 and £150 VAT depending on the area where the notary’s offices are based.
Please note that Powers of Attorney executed before an English notary will need to be legalised with The Hague Convention Apostille (at the Legalisations Department of the Foreign and Commonwealth Office) in order to be valid in Spain.,
Your notary will be able to arrange legalisation but he/she will charge and administration fee (in the area of £30 plus VAT.) You will also be responsible for payment of the Foreign and Commonwealth Office’s fees which amount to £27 per document.