This is the notarial document through which a person, with foresight, confers powers to a third party so that the latter, in his name and on his behalf, may carry out any type of action in the event that said principal, for whatever reason (such as a neurodegenerative disease, an accident, etc.), should in the future require support for the exercise of his legal capacity.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
A preventive power of attorney is an instrument by means of which a person, who is called the grantor, confers powers to a third party, who is called the attorney-in-fact, so that the latter, in his name and on his behalf, may perform legal acts or business in the event that the grantor, for whatever reason (such as a neurodegenerative disease, a traffic accident with neuronal damage, etc.) loses or is impaired in his natural capacity to understand and will and, therefore, to govern himself and to understand the legal consequences of his acts, so that as a consequence, if necessary, his natural capacity to understand and will and, therefore, to govern himself and to understand the legal consequences of his acts, may be impaired.) loses or is impaired in his natural capacity to understand and to will and, therefore, to govern himself and to understand the legal consequences of his acts, in such a way that, as a consequence of this, if necessary, he requires support or assistance in the exercise of his legal capacity.
Thus, if this unfortunate and undesirable situation should arise, the attorney-in-fact will be able to manage the assets and the personal and economic interests of the principal, ensuring that a person who is in full use of his intellectual and volitional capacities will adequately take care of his interests, and thus avoiding possible damages arising from situations of neglect or malicious behavior of third parties who take advantage of this situation to enrich themselves unjustly.
In short, the preventive power of attorney is the notarial mechanism that allows a person to designate another person to act on his behalf when he needs support or assistance in the exercise of his legal capacity.
When someone is unable to fend for themselves (as a result of having suffered a process of deterioration or loss of mental capacity) it is necessary to initiate a process for the provision of support measures in the exercise of legal capacity, in order to, if necessary, appoint a guardian or assistant (in the field of Catalan civil law) to look after the personal and property interests of the person in need of support or assistance.
However, it must be taken into account that these judicial processes, in addition to entailing a high economic cost for the families, can last a considerable time, taking into account the current state of collapse of the administration of justice, with the serious damage that can be caused to a person's assets if no one, for a long time, is able to carry out any valid procedure.
In order to avoid this situation, the preventive power of attorney is undoubtedly the most appropriate instrument, since by means of it, any person, in case of a situation of loss of intellectual and/or volitional capacities, will be able to designate a person of his trust to watch over his personal and patrimonial interests. This power of attorney may establish a wide variety of provisions:
Indeed, under the figure of the preventive power of attorney, we can actually include two categories of power of attorney:
In the first place, it is possible to opt for the granting of an ordinary power of attorney, which is effective from the moment it is granted, but with the addition that it also includes a clause by virtue of which said power of attorney will remain in force even in the event that in the future, the principal may need support in the exercise of his legal capacity.
On the contrary, the second possibility consists of granting a power of attorney that will only be effective in the event that the principal needs support in the exercise of his legal capacity, so that until this happens, the attorney-in-fact will not be able to carry out any act in his name and on his behalf.
The difference lies in the fact that the simple preventive power of attorney is granted by a single person, as principal, designating a third party as attorney-in-fact.
In contrast to this, in the reciprocal power of attorney, two persons grant the deed as grantors, and by means of the same they proceed to designate each other as attorneys-in-fact in the event that the other person needs support in the exercise of his or her legal capacity in the future. This kind of reciprocal powers of attorney are usually common between spouses, so that both appoint the other spouse as attorney-in-fact, respectively, so that he/she can act in the name and on behalf of the other in the event that one or the other needs support or assistance in the exercise of his/her legal capacity.
The preventive power of attorney granted must specify how the need for support or assistance is to be assessed, as this is undoubtedly key to know from what moment the power of attorney can be used and how to verify whether its use is actually appropriate.
Thus, it is possible to opt for a model in which a medical certificate attesting to a loss of cognitive abilities is sufficient, or to opt for a system in which recognition of a certain degree of disability by the Public Administration is required.
This will avoid the need to assess the situation of incapacity by means of a judicial resolution establishing certain support measures (such as guardianship), which, as mentioned above, is a long and costly process.
Generally speaking, a power of attorney may be granted by any natural person of legal age who is in full exercise of his or her natural capacity to understand and will.
Any natural person of legal age and with full intellectual and volitional capacity may be appointed as attorney-in-fact in a preventive power of attorney.
It is also interesting to know that in these cases legal entities (such as foundations) whose purpose is to look after the personal and patrimonial interests of persons with disabilities or who are incapacitated can also be appointed as attorneys-in-fact.
Indeed, if a preventive power of attorney is granted, the Law obliges the Notary Public who authorizes the deed to inform the Civil Registry where the birth of the principal is registered, so that this is recorded.
By means of the preventive power of attorney, the legal acts or businesses determined by the principal may be carried out, although taking into account the purpose of the power of attorney, the powers that are usually included in it are very broad, and usually include those of a general power of attorney, among which it is usual to include the following:
In addition, of course, the power of attorney may include any other power not mentioned above that is in the interest of the principal.
As has been indicated, the powers conferred to the attorney-in-fact in a preventive power of attorney are very broad, so that its granting confers to the attorney-in-fact the capacity to carry out practically all legal acts or businesses that any subject can carry out in the economic and social reality, so that, as can already be seen, the importance and transcendence of the document for the assets and interests of the principal is crucial.
Also, if we combine this reality with the fact that this power of attorney will take effect when the principal's mental capacities are impaired, so that he/she will have no way of supervising or controlling the attorney-in-fact's actions, the relevance and importance of the document becomes fundamental.
Thus, if the attorney-in-fact performs, by means of the power of attorney, acts in good faith and with professionalism, it can undoubtedly mean something good and positive for the principal, since the latter will have a person who can look after his interests and assets when he is unable to do so, since he has lost his mental capacity to do so.
On the other hand, it is important to bear in mind that if the attorney-in-fact misuses the power of attorney, performs acts in bad faith or negligently manages the assets of the principal, this may result in a great loss to the principal's assets.
In view of the above, the granting of a preventive power of attorney in favor of a third party must be an act that has been carefully considered and reflected upon with serenity by the grantor, based on a deep trust in the person of the attorney-in-fact, because once it is granted (and without prejudice that it can be revoked afterwards) the consequences of it, should it be necessary to make use of it, can be absolutely devastating if the attorney-in-fact makes a bad or negligent use of the power of attorney, can be absolutely devastating if the attorney-in-fact makes a bad or negligent use of the power of attorney, so that, again, it is reiterated that any person who is interested in granting a preventive power of attorney, must think very seriously about the consequences that it can suppose for his person and patrimony and to do it only if he has a deep and sincere confidence in the honesty, professionalism and rigor of the attorney-in-fact.
In any case, it should also be noted that the law allows the principal to establish control measures in the preventive power of attorney (such as the appointment of a supervisory body, the need for an annual inventory, an annual audit of the management carried out, etc.), which, undoubtedly, can also be very interesting to try to ensure an adequate use of the preventive power of attorney.
Of course, it is possible for the principal to appoint more than one attorney-in-fact in the power of attorney, so that two or more persons may exercise the powers provided for in the power of attorney.
In this case, with regard to the form of action, it is necessary to indicate that it will be conditioned to what the principal establishes in his deed, so that he may choose whether he prefers that the 2 or more attorneys-in-fact act jointly (that is, that each one may act on his own behalf) or, on the contrary, jointly, that is, in a joint manner.
In the event that the form of action is not specified, it is understood that, in application of the principle of written interpretation of the powers of attorney, the attorneys-in-fact shall act jointly.
The law and jurisprudence determine that powers of attorney, including preventive powers of attorney, must be interpreted by means of a principle of prudence and restrictive and strict interpretation, so that the attorney-in-fact may only perform those acts or legal business that have been clearly, expressly and clearly established in the power of attorney, while, on the contrary, everything that is not specified or is doubtful or interpretable, will be outside the scope of action of the attorney-in-fact.
The power of self-contracting is a provision that may be included in the power of attorney by virtue of which the principal confers the authorization to the attorney-in-fact so that the latter, when acting in his name and on his behalf, may conduct business with himself.
<ejemplo>“Así pues, un ejemplo de ello sería el supuesto en el que un poderdante concede facultades al apoderado para enajenar sus bienes inmuebles, y al incluir la facultad de autocontratación, el poderdante autoriza asimismo a que sea el propio apoderado quien adquiera su vivienda”.<ejemplo>
On the other hand, the power of interest conflict is that provision that can be included in the power of attorney deed by virtue of which the principal authorizes the attorney-in-fact to use the power of attorney even in those cases in which there may be conflicts of interest between both parties.
<ejemplo>“Lo que por ejemplo, puede suceder en el caso de que en el poder se incluya la facultad de participar en subastas de bienes, y en una subasta concreta también forme parte el apoderado como postor. En este caso, como se puede observar, existe un conflicto entre ambas partes, pues la oferta que pueda realizar el apoderado, en nombre y representación del poderdante, entrará en conflicto con la que pueda hacer el apoderado en su propio nombre y representación, de modo que la actuación del apoderado, en nombre y representación del poderdante, sólo sería válida si en el poder que se conceda se especifica expresamente que se puede hacer uso del mismo incluso en situaciones de contraposición de intereses con el apoderado”. <ejemplo>
Of course, as long as the principal retains his natural capacity to understand and to will, he can revoke the power of attorney at any time he wishes, so that if once the power of attorney has been granted, the principal considers that he no longer wishes to maintain it, for whatever reason (such as loss of confidence), he can go to the notary's office to execute a deed of revocation of power of attorney to render it null and void. For more information on this subject, please refer to the section of this website on the revocation of powers of attorney (HERE).
Of course, the attorney-in-fact can also resign from his position at any time, as soon as he so desires, so that, if he considers it appropriate, he can choose not to make use of the power of attorney, destroy the original of the power of attorney or, if necessary, formalize his resignation by means of a public deed. For further information on this subject, please refer to the section of this website on the waiver of powers of attorney (HERE).
Of course, there is no problem in this, so that if for any supervening circumstance it is necessary to modify the power of attorney to include or withdraw some specific power, this is perfectly possible. For this purpose, it will be necessary to go to the notary's office to execute the new deed modifying the power of attorney.
The power of attorney deed must be signed only by the principal, i.e., the person granting the power of attorney, so that it will not be necessary for the attorney-in-fact or attorneys-in-fact to attend the signing of the deed or to accept their designation as such.
Once the power of attorney has been signed, the notary's office will proceed, in the same act, to deliver an authentic copy of the power of attorney to the principal, so that the latter may make the corresponding use of it.
Indeed, in order for the appointed attorney-in-fact or attorneys-in-fact to be able to make use of the power of attorney when appropriate, it will be necessary for the principal to deliver the authentic copy, so that the latter can then make use of it if the loss of capacity occurs as a result of which the use of the power of attorney is necessary.
Of course, the notary can go to your home to sign the power of attorney, since the law obliges to guarantee the notary public service to all those handicapped, sick or with reduced mobility who cannot go to the notary's office by themselves.
However, it will be necessary to take into account that, in such a case, as a matter of territorial competence of the Notary requested, it must be a Notary of the locality in question in which the domicile of the person who is unable to travel is located.
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Necessary documentation for nationals:
Necessary documentation for foreigners:
It will be necessary to provide the birth certificate issued by the Civil Registry if the person granting the power of attorney was born before 1950.
