I mentioned the role of the Spanish Notary in a previous article and am often involved with matters where a Power of Attorney (‘POA’) needs to be prepared. In the UK, a POA is valid for use within the UK provided that it has been signed in front of a witness. Under Spanish law however a POA must be signed in front of a Notary Public. I have attempted to set out the different procedures involved as well as the factors you should bear in mind when considering granting a POA.
Is the person granting the Power in the UK ?
If so the document will need to be prepared in Spanish and ideally have an English translation so that the person understands exactly what he or she is signing. A Notary Public will then need to be located (a firm of solicitors local to the person signing will know of one) and the POA will need to be signed before him. A fee of between £40 – £60 is commonly charged by the Notary Public for this. The next step is for the document to be ‘legalised’ in order that it can be used in Spain. Basically this involves the Foreign & Commonwealth Office (‘FCO’) in London checking the authenticity of the Notary’s signature and then attaching the Hague Apostille. This all sounds complicated but is in fact very straightforward and the FCO only charges £12.00 for their involvement.
Is the person granting the Power in Spain ?
Where the person granting the Power is in Spain the document will need to be signed before a Spanish Notary and there is no need for the FCO to be involved. The Spanish Notary will charge approximately € 60 euros for this depending upon the nature and complexity of the document.
Who should I appoint as my Attorney ?
It goes without saying that the person you appoint must be someone you trust implicitly, and ideally someone who is additionally governed by a set of professional rules. It never ceases to amaze me the number of British people who are prepared to grant a POA in Spain without knowing anything about the person appointed, or even the extent of the powers they are granting. The POA can be made in favour of an individual, or in favour of two or more people jointly. Whilst it might be cumbersome to have a POA that requires two or more people to act upon it, it may build in an additional safeguard. As an example, a person may be well advised to consider appointing their two children jointly so as to ensure that one child cannot act without the other’s consent. Blood is generally thicker than water but human beings can be tempted to behave differently when money is involved.
What kind of documents can be signed as a Power of Attorney ?
These include authority to sign an Escritura (Title Deeds) on your behalf, pay taxes, deal with an inheritance, commence court proceedings as well as many other issues. The POA can be revoked (cancelled) by informing the donee in writing, although I always advise that this should be done formally before a Notary who will then communicate this directly to the person in whose favour the POA had been granted.
In short, my advice is that the granting of a POA should be a last resort, ie if you can sign the Escritura or Inheritance Deed (or whatever it might be) in person then all the better. If not then at the very least make sure you fully understand what you are signing, and trust the person you grant the POA to with the contents of your bank account, your home and anything else you currently possess. Please feel free to call me on 966-426-185 or 677-204-355, or alternatively send an email to info@marc-white.com if you wish to discuss this or any other issue. I will be at the Viva España show in Dublin this weekend and will not be able to reply to emails before I return to the office on Tuesday 31 May.
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