Power of attorney

Hi  we have been advised to get a power of attorney so I can deal and sign on behalf of my mum on our Spanish account ad she can no longer go out to spain. Can I use an English power of attorney or do I have to get one down in Spain.  Thank u. 

In your own country

If you cannot come to Spain you can still make a POA in your own country by visiting a notary there instead. Your Spanish solicitor will draft the document in a bilingual version so that the notary can witness you signing the document and knows what it says.

The POA will need to have an Apostille of the Hague. This is a stamp that is attached to the original document in order to confirm that the signature, seal or stamp on the document is genuine. The Apostille is obtained from the Foreign Office.

If you happen to live near the Spanish Embassy in your home country then the POA can be authorised there.

Finally, the POA will need to be translated into Spanish by an official translator. You will need a ‘Sworn’ translator who is specially qualified and registered for this purpose. They sign and stamp their translation, which again confirms its authenticity. Don’t worry if this makes the process sound complicated. Your solicitor will have enabled thousands of these and be able to steer you in the right direction.

I was researching power of attorney (PoA) earlier this year, and I came across the issue of problems with UK notarised PoA’s.

The issue is described here, but essentially it was about whether a UK notary performed the same role as a Spanish one, and in particular the capacity of the grantor. Having read the various reports I came to the same conclusion described in the article, so it’s as well to make sure that the wording is suitable. NB the issue relates to property, but I think the principal is the same.

In the end I didn’t need a PoA, but I did email the company in the link for a price etc, and it can all be done by email and then notarised locally. There may be somewhere locally that can prepare it for you, but I would ask them about this issue, to see if they are uptodate.

Notary documents which are authorised "in public way" in the exercise of the notarial function in England or Wales, signed and sealed by the notary, containing a reference to the judgement on capacity, capacity of the parties and , where appropriate, sufficient powers of attorney, are equivalent to Spanish public documents regarding the effects of the registry public faith.

It should be noted that notaries are competent to adapt their minutes to the
requirements of the destination country. For this reason, when the public document
is destined to produce effects in Spain or another system of the Latin Notary, the
notaries in England and Wales usually grant a document in public form perfectly equivalent to the public document in Spain.

That above is the opinion of the UK Authority on Notaries, shared by Notaries in Spain

Not about the legality of PoA s but about retracting them.

We invoked a PoA for our Spanish lawyer to take the necessary steps to retrieve our deposit on an off-plan property.

That was ten years ago and, so far, the case  has not been settled.

However should that day arise, with a hopefully successful outcome, how is the PoA revoked?

Hello Sandra

How to cancel it ?. The power could be revoked before any notary and the representative must be notified.

It is important to note that in principle the powers of attorney in Spain, unless otherwise stated, do not have a specific validity period, so if you do not say anything they will be valid until your death.

This is according to White & Baos 2018 Spain Solicitors. However only you can judge how true and reliable anything is on the internet.

The person who granted the power of attorney is, in general, free to generate the revocation to the attorney at any time. Thus, the former is allowed to request the latter to return the copy that was provided to him, in which he was authorized certain functions as a representative.

When can a power of attorney be revoked?

When the proxy has refused to return it, it is when the revocation can be made, notifying it through a notary. The notary who is in charge of informing the representative, will not have to be the same before whom the power was granted in the beginning. 

Steps to follow for the revocation of the proxy:

1. Request the return 

At the time the grantor so wishes, he may revoke the power of attorney, by requesting the return of the copy to the person he designated as representative. 

If we can not locate the agent, or  he refuses to return it: 

2. Notification through a notary

If the proxy has refused to return the authorized copy of the power of attorney or it is not possible to locate it, the power of attorney must be revoked by granting a deed. The same will be done before a notary, who must notify the representative.

This last step is important since otherwise, it would be possible to apply art.1738 of the Civil Code that allows the performance of certain acts by the attorney for a supposed ignorance of the revocation.

Steps to follow if the address of the agent is unknown

If the current domicile of the representative is not known and you cannot send a burofax, nowadays it is possible to send the necessary communication via mobile phone, since a text message can announce the revocation to the proxy, attaching the deed of revocation of the same. The sending of the sms will be a guarantee of certainty that it has been sent and it could equally be said of the use of the electronic mail.

Thank you María.

For a very clear and concise answer to my question.

Hi! You have a rather specific question that only a qualified lawyer can answer. I think you need a family law specialist. You can refer to fleetwoodfamilylaw.ca, and I think they will be able to give you an answer even in electronic form. They helped me a lot when my father had a stroke, and I needed a power of attorney to manage the company's affairs on his behalf. The board of directors then conspired, and they wanted to cheat my father, but I managed in time and kept my father's company.