Careful Who You Grant a Spanish Power of Attorney To
Talking to a local Notary last week, he was bitterly complaining about the decision by the Supreme Court to eliminate the registry of revoked powers of attorney, after denying its validity. The reason for his tantrum was that a sale had been concluded by someone who had received a power of attorney (POA), who, in spite of knowing that he no longer had the authority to use it because it had been revoked and such revocation communicated to him, still decided to use it to his own advantage (most probably, to defraud). This, he says, would have been prevented had the Supreme Court not acceded to the petitions of nasty and envious land registrars (and a few notaries as well), who were behind the action.
The Supreme Court ruling (full text in Spanish), which is more than two years old, but whose consequences are emerging now, is yet another example of a traditional power struggle between notaries and property registrars (defined once as “centenary parasiting casts”), that has dented the protection our notarial system has traditionally offered to people dealing with, particularly, property, via the Notarial Archive of Revoked Powers of Attorney.
The above ruling is counterproductive because it has banned the use of a registry (or archive) notaries had come up with, in essence, to keep a record of powers of attorney that had been revoked by the grantors, because they did either not trust the beneficiary, or did not wish to keep them valid indefinitely. Now the powers can still be revoked but no longer is the notary able to consult a nationwide registry to find out if a power of attorney have been revoked (at one point, there were 130,000 revocations recorded in it!).
The problem is that now, even if you give a power of attorney, you have to rely on the honesty of its recipients, because, unless you physically remove it from them (and ensure they cannot get a copy) you can never be sure that it will not be used. It is therefore important that powers of attorney, other than to trusted family members, are only given to reputable professionals that are registered with a professional school.
If the above is not possible, try to:
- Limit the scope of a power of attorney to specific assets.
- Avoid giving powers of attorney to sell property unless you have substantial trust in the recipient.
- If the power of attorney is not going to be used again, have it revoked at a Notary Public, who will then notify the beneficiaries.
Lately, a new fraud consisting on giving out powers of attorney by falsifying identity documents has been detected. The perpetrators, who have access to personal details from, for example, a rental agreement, forge the identity document or passport and sell the property. This happened to a rich Arab in Marbella, who, to his shock, found out that someone had sold his plots with a power of attorney forged in Holland. One of the buyers happened to be a high planning official in Marbella, who is indicted on charges of alleged fraud.
Unfortunately, here one has to rely largely in the police forces and to a lesser extent, in notary publics, who should only accept powers of attorney to sell given to known-to-them lawyers, or attorneys, as the name of the document indicates.
Help!!!
I have a bill for purchase tax on 65K property of which i have paid a 5k dep for 6960 euro… this includes land reg…is this right??/ my spanish lawyer has asked to only today to transfer the money to his spanish bank before he signs my title deeds tomorrow…also his fees for the purchase is £2300 making a total cost of££8300 for a 65£ property…should i transfer all the money he wants the euros and his fees…before he signs..he has power of attorney
Please help
Vicky
Hello Vicky,
On a property worth 65.000 GBP (Sterling Pounds), the following costs are applicable:
Transfer tax: 4.550 GBP
Notary fees: 600 GBP approx.
Land registry fees: 500 GBP approx.
Legal fees: 1416 GBP (Generally, no more than 1.200 GBP plus VAT)
This makes a total of around 7000 GBP in costs, over and above the purchase price of 65.000 GBP. The above does not take into consideration other expenses, such as mortgage-related costs. If you feel that his costs depart too much from the above then you will need to ask the relevant questions, and if you are not happy then all I can suggest is that you change lawyers.
To summarize – please see below an account from signing a Power of Attoney – we now wish to evoke, please can you advise, Maria Read is from First Assistant who was handing my farthers death as the funeral director, who
Made us sign a document at a Notary in spain to pay her funeral costs.
Prior to our departure my mother and I went to see my Fathers bank manager Don Carlos Sordo of Santander to let him know that we were unclear as to what we have signed as the document was in Spanish. He confirmed the document only gave her power to pay outstanding bills. He confirmed this was the process to enable the start of my father’s inheritance. He also confirmed that the inheritance tax would be paid first, and then any outstanding bills including Maria’s with the residual transferred to our bank account in England. We advised him that we did not want Maria Reid to have power of attorney as we was not happy with her invoice and wished to dispute some of the areas as I believe that this service had not been supplied.
With regards to the bill for the funeral, we know it’s very expensive in Spain but we told Don Carlos Sordo we were unhappy with the invoice she has produced, as prior to this on several occasions we asked for a break down. Understandably my father was in the apartment and his body had to be moved then this would have incurred expenses, as my farther didn’t even have a service and was cremated straight away it seems somewhat expensive. Don Carlos confirmed that her invoice would need to be authorized by me prior to being paid and if we were not happy with this he would not authorize the payment of €5,500 euros without a funeral. Just cremation and to receive my farthers ashes.
The Notary stated that because we were leaving to go back to the UK Saturday 7th September there was not enough time to complete the document for signing. We were therefore asked to bring two witnesses with us. We signed the document attached; our witnesses Felecia Rafferty and Michael Adams have to go back this week to sign another document.
We are still unsure what role Michael and Felicia are playing by being present. we can only assume that as the documentation would not be ready for another week, the Notary asked if we could provide 2 witnesses for our signatures as we would not be present to sign the main document.
Michael and Felicia were asked to bring their passports. We understand we think that they are needed for authentication, before it can send to Madrid and then presented to the bank. We have instructed them not to sign until we get proper legal advice.
On route back to Britain we were stopped at the check-in desk for the documentation. We showed them the paperwork Maria had given us. They confirmed that she has given us a register of death and not the death certificate. The Guardia de Survol came down and at one point we did not think we would get on the flight. I was so upset, eventually they let us on.
We have 2 registration certificates translated in English you advised us that Maria will be holding all the relevant documentation. We believe Maria is not acting in our interests, and as such looking for a lawyer to act on our behalf.
the original power of attorney – my understanding is that the original document should have cost 100 euro’s for the power of attorney which we have sent you and 300 euros for its conclusion that we have yet to receive a copy of. A total cost of 400 euros; will these invoices still be applicable?
I have several questions that I hope you can answer for me please.
Please would you supply a written quote of the charges for the work to date along with any additional charges you feel might be incurred in connection with my father’s estate?
Andrea my sister was not present in Spain and therefore didn’t sign the previous power of attorney; does this mean that the previous document is not valid?
I am unhappy with the invoice from Maria Reed for the funeral costs, some of these charges appear to be duplicated and also rather high. What will be the additional fee for disputing the invoice for the funeral cost?
Can you advise me of how much the inheritance tax would be?
Will there be any additional charges that you feel I should be aware of.
@Cheryl Mutlow
hi Cheryl
A blast from the past here for you, I do not know why I googled you i was looking to see if I could see you on Facebook but i didn’t and saw this blog post from you!!! Am so sorry to hear that uncle Graham has passed away must be a terrible time for you with all the legal rubbish that comes from such matters abroad.
How is Auntie Ann coping? You can contact me at jbirchjones@tiscali.co.uk if you wish to communicate, would be good to hear from you
Jo x
My father has severe dementia and lives in Spain, his wife is trying to get power of attorney saying he understands what is happening, this is impossible as he doesn’t even know who she is, she is his 2nd wife not my mother, she thinks I should look into getting POA aswell in case anything happens to her. How can we go about this please. And how does she get POA with my dad having severe dementia?
Hi Sally,
The circumstances in which your Dad is do not permit the grant of a POA: it would be against the law. Moreover, using a POA after the death of a person would be equally illegal and therefore, you need to rule this out.
Currently, there is only one way a person can become the ‘representative’ of your father and that is by requesting a ‘tutorship’ through the Courts. The Judge, on hearing a forensic report opinion and the opinion of the Prosecutor, and always in the interest of the person that is to be declare incapacitated, will appoint a tutor.
As from there onwards, the incapable person will represented by the tutor.
Thank you so much, that helps me immensely, my dad is currently in a Red Cross hospital after being transferred from the main city hospital 4 weeks ago, his wife is trying to get him moved back into the nursing home he was in. Can we obtain a forensic report from his current doctor? Thank you. @Antonio Flores
Sally, yes you can but it will only be of help if you issue proceedings in Court to have your Dad incapacitated and a relative appointed, as a ‘tutor’, or guardian. I would also warn your wife that a POA cannot be legally granted under these circumstances and if she persists, I would inform all Public Notaries in the vicinity, to them on notice.
I am the daughter and sole heir of my father who is 95 yrs. old. His wife just
passed away. I think I should have a power of attorney to protect his interests
as well as my own. Can he give more than one person a power of attorney?
Wouldn’t that perhaps result in opposing points of view over certain matters?
Hi Alma,
Although legally there is no comment to make, from a practicality point of view it’s probably better to have just one POA to avoid inconsistent decisions being made on diverse matters.
Hi re POA´s reading the above it seems its called applying for a tutorship at Court, my father in law is 90 and suffering from dementia and has been put into a private nursing home. My sister in law says she is applying to the Court for a POA to be able to run his company of which he is the major shareholder, she states that only she as the eldest child can do this, also that he will no longer recieve his salary or bonuses from his company even though he is the major shareholder, is all of this correct please ?.
Hello Len: I don’t know where in the law does it state that the eldest child will be granted POA to run the company. Equally, there is no reason why your father in law should not receive a salary or bonus, through the tutor.
I suggest you hire qualified legal representation in the area where the company is located to verify the actions that are currently being taken.
Hi Antonio thank you for your reply and a happy new year to you. So are the laws the same in Ibiza as mainland Spain ?. My wifes sister (my sister in law) who works for my father in laws company, but at the moment has been off sick for months, says that although my Father in Law who has run his company in Ibiza for over 40 years he is not entitled to his salary and that his Villa in Ibiza and an apartment in Albir Spain will have to be rented out to go towards his Nursing home costs. She has been consulting a solicitor in Ibiza and has a hearing at a Court in Ibiza to obtain POA in February, and says as stated previously that as the eldest only she and only one person can apply for the POA. My wife (her sister) is quite upset about this and me nor my wife can see why he cannot draw a salary still, in a home or not, its his company. Also when he originally went into the nursing home she said that he would receive baja which as I understand it is sickness benefit and that would cover half his costs. Now it seems she want total control over his company and his finances and seems to be denying him his what to me are his legal rights to a salary from his company and baja. My wife feels that maybe she is being very controlling and not exactly being truthful about things. Thanks Len
Len, this situation appears to be one of greed as the facts don’t stack up. The ‘eldest’ brother alibi is legally no more than ‘rubbish’ for which reason I suggest that you continue via the route of the Courts.
For your information, a person who goes into a nursing home and happens to be incapacitated must have its case reviewed by the Court and State Prosecutor, who will decide on the best way forward on the merits of the allegation of the parties (children).
Hi Antonio,
I need to sign a POA as my mother recently died and I need to go through he inheritance process and sell her property in Spain.
I need the solicitor to undertake the probate / inheritance and also sign all the necessary paperwork when the property sells (no buyer in place as yet).
The Spanish POA is wide scoping with no end clause. I queried if anything can be written in to the POA so that when the inheritance process is finalised the Attorney’s work will suspend under the POA. When the beneficiaries accept an offer on the property the POA will start again so the solicitor can act on our behalf re the sale. Once the sale is completed the POA will automatically cease / be revoked’.
The solicitor informs this cant be done and we must either come the Spain and meet the Spanish notary to revoke it or just leave it in place (which I am not happy with). What is your advice?
Thanks Justine
Antonio
Hello. I don’t know if you are still monitoring this blog it’s been over a year since anyone posted here. I’ll try anyway as I’m not sure where else to go.
My partner has a power of attorney for his godmother who lives in spain. two years ago, the woman made a will identifying my partner as her sole beneficiary. some time after that, a distant relative of her late husband convinced her to leave her church-provided and monitored accommodation and moved with her into a house she owned in a village some distance away. She also was pressed to give this man the appointment of tutor. I can’t establish if this has exactly the same authority as my partner’s POA or what the situation is with respect to her estate, health and living conditions. he has moved her into a care home citing deteriorating mental faculty which does not appear to be borne out during conversations over the phone. we are concerned he is trying to have declared incapacitated so he can access her considerable wealth. we want her moved out of that care home to the place she wanted to go to which is much nicer and has superb facilities both for her quality of life and medical support. but we don’t know what we can do while this Tutor entitlement is held by this other person. can you help?
Hi Justine,
Revoking a POA in front of a Notary, who then notifies the lawyer, is just as good as the lawyer going to the Notary to sign an undertaking saying that he will no longer use this POA, following instructions from you. The issue here is one of being formally notified so you do not need to do this if he confirms, on a public document at the Notary, that he unilaterally ceases to be empowered by you by virtue of the POA granted at a given day.
Another option is that the POA is done over a period of time, say 6 months, after which it becomes invalid.
I hope this helps.
Les,
Currently, if your godmother is compos mentis then she has the right to decide how she wishes to live and appoint a tutor through lasting POAs. As you point out, your concern as that the appointed person may not have her best interest at heart and for that reason, should you believe that this could be the case you can look at starting a legal procedure.
Hi Antonio,
Hopefully you will pick up my query,
My mother and stepfather moved to Spain in 2005, in 2006 they bought a property, I had to appear on the mortgage as they were too old for the loan on their own. I supplied some pay slips and signed a POA in Spain, this was to prevent me from having to visit Spain for relatively minor matters. Our relationship broke down some time thereafter, I have now recently discovered that they re-mortgaged many times, removed all equity and the property was repossessed in 2016/17. Is there anything I can do to defend myself should I be pursued in the UK, I have not benefitted at all or received any monies, I have always been mentally fit, I wonder if the POA should have been granted?
Can you assist?
Thanks
S
Hello Stuart:
Thank you for your message.
POAs are definetely a source of plenty of headaches (at best) and real complicated situations (at worst). If the POA was not revoked, it could have been used without your instructions -and can be used in future-. So as far as the bank is concerned, they are legally protected by the fact that the POA is valid. However, if you never gave an instruction to the beneficiaries of the POA you would have an action against them.
What would be important to establish is if you have any outstandind debt further to the property having been reposessed.