A power of attorney is a way of giving someone you trust, your attorney, the legal authority to make decisions on your behalf. You can give a power of attorney to any adult with full mental capacity.

This is very useful at different stages of life, especially to resolve administrative procedures when you are away or need someone to act for you because of incapacity.

How can I arrange a power of attorney?

To arrange a power of attorney, you visit a notary’s office, show your NIE (identification number in Spain) and pay an administrative fee (the Poder de pleitos or poder general). The cost is usually between 25 and 50 euros. You can cancel a power of attorney at any notary office in Spain.

How does it work?

The notary will advise you on the appropriate power of attorney for the situation you want it to cover. For example, you can give a one off power of attorney to someone to manage the sale of a property you have in Spain, or you can give a general power of attorney to your representative to manage a range of legal processes and decisions on your behalf. You cannot usually give a power of attorney to another person to make a will on your behalf except in very limited circumstances.

Types of power of attorney in Spain

There are different types of power of attorney to cover different circumstances:

• General power (Poder general): you authorise your representative to act on your behalf in various legal and practical situations. The most common are:

  • Power for lawsuits (Poder para pleitos): this is the most popular in Spain. You are allowing your representative to go to court on your behalf.

  • Power to manage assets (Poder para administrar bienes): the representative will be able to manage your assets such as money, inheritance and things you own (but not mortgages and the sale or purchase of property).

  • General power (Poder general): a wider power to manage your affairs including the sale of property.

• Special powers (Poderes especiales): to manage a specified one off activity, such as buying or selling goods, making a bank transfer or accepting an inheritance.

Power of attorney abroad

A Spanish power of attorney can be recognised in other countries. It will need to be certified by an additional process called an apostille which is also done by a notary. The Hague apostille is recognised in most countries.

What happens if I become incapacitated?

You have to have full mental capacity to grant a power of attorney to another person. If your mental capacity is in doubt, you will not be able to grant a power of attorney. Therefore, you need to plan ahead. It is important to act as soon as possible if you have been diagnosed with dementia and you may lose your mental capacity in the future.

If you do not have full mental capacity then an application will need to be made to the judicial authority for a “Curatela” to be appointed for you. The judicial authority will determine your needs and state specific acts in which the Curatela can exercise representation on your behalf.

Articles 215 to 303 of the Civil Code applies (Codigo Civil Español)

What is mental capacity?

Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.

Some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner, but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may change from day to day.

Needing more time to understand or communicate doesn’t mean you lack mental capacity. For example, having dementia doesn’t necessarily mean that someone is unable to make any decisions for themselves. Where someone is having difficulty communicating a decision, an attempt should always be made to overcome those difficulties and help the person decide for themselves.

I have a partner, can’t they act for me if needed?

If you are married or in a civil partnership, you may have assumed that your spouse would automatically be able to deal with your bank account and pensions and make decisions about your healthcare if you lose the ability to do so. This is not the case.

Without a power of attorney, they won’t have the authority. It therefore makes sense to arrange your power of attorney now whilst you are fit and healthy, so you know that you have things covered for you and your family if you ever need someone to act on your behalf.