As part of the reform in family law represented by Law 8/2021, of June 2, which amends civil and procedural legislation to support people with disabilities in exercising their legal capacity, there is an explicit regulation of so-called Preventive Powers of Attorney or Lasting Powers of Attorney, particularly in the newly drafted Articles 256 to 262 of the Civil Code. This law came into force on 3rd September 2021.
The execution of a Power of Attorney means delegating trust to the attorney, as they are authorised to perform certain actions that will legally bind the grantor. The content of the power can vary widely, depending on the grantor's will.
It can be a Special Power of Attorney for a specific transaction, such as selling or buying property, managing bank accounts, accepting an inheritance, incorporating a commercial company, representation in tax matters, acting in a court proceeding, etc.
It can also be a general power, containing a broad range of powers with a very wide scope.
Whatever the powers granted, they typically become null and void upon the death of the grantor and—until now—with their mental incapacity, since if the grantor is not of sound mind, they are no longer in a position to revoke the power, should they wish to do so (Article 1732, as it was before the enactment of Law 8/2021).
However, under the previous wording of article 1732 of the Spanish Civil Code, the grantor could explicitly establish that the power would remain in effect even in the event of mental incapacity. Furthermore, the power could even be established to be effective only if the grantor becomes mentally incapacitated, but not usable if they are in full use of their intellectual faculties.
This legal possibility is now regulated in more specific way, comprised within a chapter addressing voluntary support measures for individuals when they require support in exercising their capacity (or what it was before considered as an individual lacking mental capacity).
Under the new wording of the Spanish Civil Code introduced by the legal reform, Preventive Powers of Attorney or Lasting Powers of Attorney are a useful tool of voluntary support measures, as the fundamental characteristic of such powers of attorney is that it remains effective if the grantor needs support in exercising their capacity.
Let's review the relevant newly drafted articles of the Spanish Civil Code regulating such Preventive Powers of Attorney or Lasting Powers of Attorney.
Article 256 states that the grantor may include a clause stipulating that the Power of Attorney remains in effect if, in the future, they need support in exercising their capacity.
This is the definition of the most common type of Preventive Power of Attorney or Lasting Power of Attorney in Spain, which is granted to take immediate effect and does not lapse if the grantor needs support in exercising their capacity, formerly defined as judicial incapacitation.
Article 257 provides that the grantor may grant power of attorney only in the event that they need support in the future to exercise their capacity. In this case, evidence of the need for support will follow the grantor’s stipulations. To ensure these stipulations are met, a notarial act will be issued, if necessary, incorporating an expert report alongside the notary’s judgment.
This could make less effective such Power of Attorney, but the grantor may wish to retain control of their own affairs until they need support in exercising their capacity.
It is a less common option, establishing that the power remains inactive initially and is only activated if the grantor needs support (i.e. meaning they are not fully mentally capable at that moment due to dementia, Alzheimer, etc.).
To proof and verify that the grantor needs the support that triggers the effectiveness of the Power of Attorney, the instructions of the grantor stated in the Power of Attorney shall be followed.
To ensure compliance with the grantor’s instructions, a notarial act may be issued that includes both the notary's opinion and an expert report that supports the need for support of the grantor in exercising their capacity.
The new regulation implies that the grantor is required to reappear before the notary, to allow the notary to assess the need for support, alongside a favourable expert report.
Article 258 provides that the powers of attorney referred to in the previous articles remain in effect despite the establishment of other support measures for the grantor, whether these have been established judicially or provided by the grantor themselves.
When granted in favour of the grantor’s spouse or civil partner, the cessation of cohabitation will result in the automatic termination of the power of attorney unless otherwise stated by the grantor or if the cessation is due to the grantor’s confinement in a psychiatric hospital.
These first two paragraphs of Article 258 establish specific rules regarding the validity—or lack thereof—of the power of attorney in the event of unforeseen circumstances. In the case of the first paragraph, the power will remain valid unless the grantor decides that it should be revoked/extinguished.
In the cases referred to in the second paragraph, it will be important to define in the power when the power should be considered extinguished. Otherwise, there could be disputable cases, such as temporary cessations of cohabitation, even for very short periods due to temporary crises, or even situations where there is no cohabitation for non-conflictual reasons—such as temporarily living in different cities or countries. If the power is not adequately defined, these circumstances could later raise doubts about whether the power has been extinguished. One possible solution would be, for example, to establish that the power is only extinguished in the event of cessation of cohabitation documented by both parties or established by means of a court order.
Paragraph three of article 258 provides that the grantor may establish, in addition to the powers granted, the control measures they deem appropriate, conditions and instructions for the exercise of powers, safeguards to prevent abuse, conflict of interest, or undue influence, and mechanisms and timeframes for reviewing the support measures, to ensure that their will, desires, and preferences are respected. They may also provide specific forms of termination of the power.
The power, in general, is like an empty box that the grantor can fill it as they wish, with the scope, limits, conditions, and precautions they deem appropriate. This paragraph highlights this.
Paragraph four of article 258 provides that any person authorised to initiate the support provision procedure and the deputy, if any, may request the judicial termination of the preventive power of attorney if any of the causes for the removal of the deputy apply to the attorney unless the grantor has stipulated otherwise.
Article 259 states that when the power of attorney contains a subsistence clause in case the grantor needs support in exercising their capacity or is granted solely for that scenario and, in both cases, includes all the grantor’s affairs, the attorney, upon the need for support, will be subject to the rules applicable to deputyship in everything not provided for in the power unless the grantor has determined otherwise.
Article 261 specifies that the exercise of representative powers will be personal, without prejudice to the possibility of entrusting specific acts to third parties. However, powers related to the protection of the individual cannot be delegated.
Civil powers are generally delegable unless otherwise specified, but in this context, it is established that certain powers cannot be delegated.
Preventive powers of attorney are always executed before a notary in a public deed and, once granted, are immediately communicated by the notary to the civil registry for recording in the individual register of the grantor (Article 260). Since this registry does not yet exist, it should be sent to the registry corresponding to the place of birth of the grantor until it is created.
At Lopez & Moreno Associates, Notaries & Spanish Lawyers, we are able to prepare notarial documents that comply with all the necessary requirements to be legally valid in Spain.
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