A new ruling by the DGRN in Spain states that Powers of Attorney witnessed by British Notaries are no longer valid in Spain, possibly in contravention of a Hague Convention.
If I understand this correctly the DGRN (General Management of Registrars and Notaries), part of the Spanish Ministry of Justice, has ruled this month that Powers of Attorney (POAs) witnessed by British notaries public are not longer valid in Spain because British notaries do not have the equivalent function of Spanish notaries.
This will be a pain for some British owners of property in Spain. POAs are useful to get many things done in Spain, for example managing a bank account or a property. Beforehand you could go to a British notary public and sign a POA translated into Spanish with an Apostille Certificate. From now on it seems you have to visit a notary in Spain, though the ruling also says that “notaries-at-law, or lawyer notaries, can be considered equivalent.” That implies that you can still visit lawyer notaries in the UK, but I can’t find anything online in a quick search that tells me that public notaries and lawyer notaries are different.
The new ruling finds that POAs witnessed by British notary publics do not comply with article 1280 of the Spanish Civil Code. On the other hand, they do comply with the requirements of the Hague Convention, to which Spain is a signatory. So this ruling seems to contravene Spain’s obligations under that convention.
“The truth is that it’s surprising that [this ruling] denies the validity of a document issued according to the requirements established by the Hague Convention, to which Spain is a signatory,” explains Pedro Pons, a partner at the firm of solicitors Pons Anglada in Menorca.
So, potentially another inconvenience when it comes to dealing with Spain, though good news for Spanish notaries, who will get more business as a consequence. Shouldn’t the Notaries Public of the UK challenge this ruling if it contravenes a Hague Convention?
13th October 2016
It turns out this resolution is not as bad as first thought. It seems it just refers to checks done by notaries to confirm the mental capacity of the person signing a POA.
“It appears that this resolution now wants Powers of Attorney that are signed outside Spain to include a section which confirms this within the Power of Attorney in order to make it valid,” says Peter Esders, solicitor and legal director of Judicare in the UK, who has looked into this. “The good news is that it is still possible to have Powers of Attorney witnessed outside Spain to be accepted in Spain but they may need an extra bit in them to keep the Registrars happy. The Resolution doesn’t say that British Notaries don’t have the equivalent function as Spanish Notaries but simply states that the Power of Attorney that they referred to didn’t set out the functions that the British Notary carried out.”