For those who have assets in Spain and have an English Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA) or Deputyship Order (DO) it will be necessary to take additional steps to deal with the assets in Spain.
An English Lasting Power of Attorney (LPA) is a legal document whereby a person (known as the donor) gives permission to another person (such as a professional, trusted family member or friend) to make decisions and take actions on their behalf. This person is known as the ‘attorney’ and this permission is known as the attorney’s powers. These powers continue even if the donor loses mental capacity.
In these circumstances it will be necessary to have the LPA/ EPA/ DO recognised in Spain or for someone else to be properly appointed, on behalf of the owner who has lost the mental capacity, to deal with the Spanish assets.
Are English Lasting Powers of Attorney recognised in Spain?
A UK Lasting Power of Attorney is highly unlikely to be recognised in Spain on its own, without further process. However, there are steps that you can take to get the LPA validated by the Spanish authorities to enable the LPA to be recognised in Spain and therefore the attorney to deal with the donor’s Spanish assets.
This process involves obtaining a legalised and officially sworn translation of the LPA that it is acceptable under Spanish law.
In addition, it will usually also be necessary to obtain a sworn statement from a lawyer with the appropriate expertise stating that, under English law, the LPA gives the attorneys authority to deal with the assets of the person who gave the LPA (the donor).
It is crucial that these steps are overseen by a legal professional who understands the nature of the LPA as well as the Spanish legal system and can advise you accordingly to ensure that the correct measures are undertaken.
An application to a Spanish Court for the English LPA to be recognised can then be made although the process is complex and likely to be costly and time consuming.
It should be noted that ‘attorneys’ given power under an English Lasting Power of Attorney are not able to delegate their power further i.e. they are not allowed to appoint a further ‘attorney’ in Spain to handle any Spanish assets such as properties or bank accounts. So, for example in order to sell a property in Spain for someone who has lost mental capacity, the English ‘attorney’ would need to travel to Spain to deal with the transaction.Will an English Enduring Power of Attorney be recognised in Spain?
If there is an Enduring Power of Attorney (EPA), the process is similar to the process to have an LPA recognised in Spain, however, additional time and costs may be incurred as the EPA will need to be registered in England before the process of validation in Spain can commence.
Will a Deputyship Order be recognised in Spain?
In the event that the person has lost capacity before either an LPA or an EPA has been put in place, it will be necessary to apply to the English Court of Protection to ask them to appoint someone (known as a Deputy) to manage their affairs.
An option could be for the Deputyship Order to appoint a Spanish Attorney to manage the Spanish estate, which means when selling a property in Spain, for instance, this can help avoid the necessity of a UK based Attorney having to travel to Spain to deal with matters.
It is possible to make an application to a Spanish court to have an existing Deputyship Order recognised in Spain. The process is likely to be expensive and take time, however.
Can you make a Spanish Lasting Power of Attorney?
Yes. For someone owning assets in both the UK and Spain, it is recommended that an both an English LPA (to cover any English affairs) and a separate Spanish Power or Attorney (which is specifically worded to authorise the appointed attorneys to deal with any Spanish assets in the event of loss of capacity) are prepared.
Obtaining the right legal advice and putting the correct documents in place can help to avoid any unnecessary cost and delay in dealing with Spanish assets when the owner has lost capacity.
If you are dealing with assets owned by someone who is unable to deal with the assets themselves whether or not under a Lasting Power of Attorney, Enduring Power of Attorney or Deputyship Order you should seek proper legal assistance to enable you to deal with the assets effectively in compliance with your obligations.
If you require assistance with having an LPA recognised in Spain, Worldwide Lawyers can put you in contact with a lawyer who can assist. Contact us on 01244 470339 or email us at firstname.lastname@example.org and we’ll be happy to explain how we can help.