Posted in: Civil Law, Family Law
A lasting power of attorney (LPA) in the UK is a legal document that lets a person ‘donor’ appoint either one person or more as ‘attorneys’.
Attorneys with a Lasting Power of Attorney help you to make decisions or they take decisions on your behalf. This is very helpful if you have an accident or an illness. Such as dementia or Alzheimer’s and you ‘lack mental capacity’. You do not need to live in the UK or be a British citizen to arrange a UK LPA. There are two different sorts of LPAs in the UK:
You can choose to make one type or both of them. They are different in Scotland, Northern Ireland (and Ireland). We refer to the UK here as we have only received enquiries about this issue from there. The LPA has to be registered with the Office of Public Guardian. To obtain advice in the UK deciding if you should make a UK LPA it is best to contact the Office of the Public Guardian
Telephone: 0300 456 0300
Often we receive an enquiry about using a UK LPA for a transaction in Spain, such as this:-
“In 2016, my mother and I put in place UK LPAs covering both health/welfare and financial affairs on behalf of my father who has Alzheimer’s.
Can you confirm if a gift or donation of the Spanish property to me under Spanish law would be possible? If so, please outline the costs for the transaction.”
It is possible to arrange a gift of a property in these circumstances. To quote the costs we need a scanned copy of the deeds and a suma or IBI (council tax) bill for the property. We would need the original Lasting Power of Attorney, which must be registered/validated in the Office of the Public Guardian. You must also arrange a Hague Apostille for international use. It needs to be translated to Spanish but we can help with this.
Please send a scanned copy of the Lasting Power of Attorney to us first to check that it may be used for the transaction in question. It may be necessary to go to Court in Spain to have it recognised, but not necessarily. We will comment on individual situations, as appropriate. When a UK Lasting POA is registered, it can work as a Judge authorisation.
Important – It is important to note that the power of attorney cannot be used to give someone else power of attorney in Spain to carry out the transaction.
Thus the holder of the LPA would have to come to Spain to make the transaction with the Spanish solicitor.
A person can use a simple power of attorney legally until the donor passes away. It must NOT be used after this. Or if they become no longer mentally capable. If you are taking care of someone increasingly incapable, you should not really continue to use the power of attorney. However as it is being used for the person’s own good, there is not a problem using it. Only until other arrangements can be made. But care should be taken with regard to financial transactions. Records should be kept of all income/expenses.
If they are living in Spain you should start an incapacity proceeding in the Courts. It is too late then if they are mentally incapable to start the process of Lasting Power of Attorney and registering it in the UK.
In the meantime, as it is for their good, you can continue using the power of attorney. However, definitely you should not sell their property. Can you transfer them to a Home/Residence if needed? Yes, if going private, but a non paying Residence (public) you could not with a basic power of attorney. Social Services would require a Judge to be involved. Family are obliged to help family in Spain. Although you do have access to the Social Services.
This leads on to this enquiry: What is the equivalent to LPA in Spain that we have in UK? If one spouse has dementia or is in a permanent coma, and there is no Spanish LPA. Will the other spouse be allowed to speak on behalf of the “incapable “?
Provisions relating to legal capacity in Spain can be found in articles of the civil code. They say that firstly no one may be declared incapacitated except by a Judge and due to legal causes. Causes for incapacitation include illnesses or permanent disabilities (physical or mental). These must prevent the person from managing their own affairs.
The equivalents to the LPA in Spain are “curatela” or curatorship and “tutela” – guardianship. They are quite different in Spain to many other countries.
These types of assistance for an incapacitated person are decided on by a Judge. During the court case, the Judge listens to the incapacitated person if possible and close relatives of the person. Also a qualified doctor. They may also require tests and when they make a Resolution, they advise the limitations to the incapacitation. Furthermore to how the guardianship or curatorship or control of the incapacitated person will function. It is also possible for a solicitor to make a document that covers some aspects relating to incapacity, a type of “Living Will”.
Curatorship is a form of legal guardianship. However it is different than from normal guardianship. The difference is that you are deemed as the curator to be assisting someone. Rather than representing them.
A curator is for someone who is suffering from minor mental or physical deficiencies. Another option for custody and protection of a seriously incapacitated person (such as someone in final stages of dementia or Alzheimer’s) is Guardianship. Guardianship is applicable when a person is totally incapable. Curatorship is applicable when person is capable but needs some help to complement his capacity. An example: you can take decisions but you don´t know the value of money. Therefore you need somebody to take care of some of your life decisions.
Persons subject to curatorship can act on their own. However their capacity is limited. Thus they need the assistance of a curator. This document is used only for acts that the minor or incapacitated person needing the curatorship cannot manage on their own. Something signed or done by a person subject to curatorship without the help of the curator could potentially be voided. Curatorship generally does not need a Judge’s authorisation, only Guardianship. A curator must assist the person in tasks which were stipulated in the legal document establishing curatorship.
Guardianship is fuller than Curatorship. The guardian is not just assisting the incapacitated, but also the representative for them. Except for anything they are allowed to do themselves. A guardian is obliged to provide care and food, look after someone all they can. In addition, to inform the Courts annually about the situation of the incapacitated person. Providing the Judge with accounts for all monetary matters also.
There are many variations on what might be needed and what help is possible. Let us know if you need help in Spain using a UK Lasting Power of Attorney or the equivalent from another country. Or assistance with something like a Spanish LPA or a Will so that we can discuss the situation.