POWER OF ATTORNEY.
A power of attorney used correctly and in the correct hands is an extremely useful instrument to deal with different situations.
Their are different kinds of powers of attorney depending on various factors.
DEPENDING ON THE FACULTIES.
The power of attorney can be made for everything “General Power of attorney” “Poder General” or for something specific “Poder especial”. You can also limit the Power in certain ways. For example a general power of attorney can be limited to assets in Spain.
For example: Powers of attorney to solicitors are normally made for specific things: selling property, buying property , accepting an inheritance, dealing with the tax office , opening bank account , court representation etc. Sometimes a general power of attorney is needed because the possible situations that need to be dealt with for the clients are uncertain and making the power of attorney specific may result in the document not being sufficient for the work later required. (in this case though you can make the power of attorney general but limited to Spain ).
DEPENDING ON WHO IT IS GRANTED TO:
You can issue it in favor of one person or to various people. If granted to varios people you can grant it “solidario “ , which means any of those people can perform the faculties in full on their own , or “mancomunado “ which means that all of them have to jointly sign to perform the faculties of the power of attorney. Making the power of attorney solidario makes dealing with things easier (only one signature needed ) while making it mancomunado provides more guarantees as it requires signature both the people in whose name the power of attorney has been granted.
If you are signing a power of attorney to sell a property and it is not to a solicitor or very close family , we would recommend it is made mancomunado to various people as this will provide more security. In any case please note that if the power of attorney provides access to a large amount of funds (for example if it is for a sale of a property) we would only recommend signing it in favour of a solicitor with indemnity insurance.
DEPENDING ON WHERE IT IS WITNESSED.
In Spain: The easiest and most normal way to to have a a power of attorney witnessed is a a Spanish notary. To achieve this you would normally go to a solicitor, who will organize the signing at the notary of the necessary document. The solicitor will send the instructions (minuta) to the notary with the faculties that need to be included. Normally you would make two visits . The first visit to the solicitor for him to take your instructions and discuss faculties to be granted with the document, and then a second visit to sign at the notary.
In the u.k. : You can have it witnessed at the Spanish consulate in London. Failing this your solicitor in Spain will prepare a double column document for you to then sign in front of an English notary. This document will then require the Hague´s Apostille affixed for the document to be valid in Spain. This is more expensive and should only be used when it is not possible to have it witnessed in Spain.
DEPENDING ON IF THE POWER OF ATTORNEY IS ENDURING OR NOT.
Enduring power of attorney: The power of attorney can be signed so that it is still valid after the person that granted it becomes of unable mind. (please note that in Spain at the moment of issue the person that grants it must always be of able mind ). This type of power of attorney can be very useful if it is signed during the first signals of dementia/Alzheimer in favor of the healthy partner, as it will allow the healthy partner to continue to handle financial affairs of the patient when they are no longer able to do this for themselves. Please note that a power of attorney can not be used after the death of the person that granted it. The will at this point needs to take over the situation.
Non enduring power of attorney: This is the normal way of signing the a of attorney in which case the power of attorney can no longer be used if the person that granted it has become mentally disabled.
Before issuing a power of attorney ask your solicitor . He is perfectly qualified to provide you with advice on this matter. Never grant power of attorney to somebody who is not a solicitor or a person of your absolute confidence (children, spouse, parents etc), and in any case do not let anyone other than a solicitor advise you in regards to this subject. (i.e estate agents, translators calling themselves legal advisers etc).