An article by Neil Oakes, Notary Public
Those of us who are lucky enough to own a property in Spain may from time to time have to give a Power of Attorney to a representative in Spain to authorise them to carry out certain functions relating to the property. It is a convenient way of ensuring that documents that need to be signed in Spain can be dealt with without the donor having to be present.
What is a Power of Attorney?
A Power of Attorney, known as a Poder in Spanish, is a legal document which is executed as a deed by which one party, the donor, delegates authority to an attorney which enables to attorney the carry out certain acts on the donor’s behalf and in the donor’s name, thereby binding the donor just as if the he/she had carried out those acts in person.
A Poder for dealing with the sale or purchase of property will contain fairly comprehensive powers for the attorney to transact the sale on the donor’s behalf. The donor must be aware of these powers and if he sees fit he may ask that the attorney’s powers be limited in scope.
The Poder will usually be prepared by a Spanish lawyer and sent over to the donor in the UK. It is really helpful if this could be done by email so that an electronic copy can be sent on to the Notary Public who will supervise the correct execution of the deed. Often the notary’s details are left out of the deed and it looks so much neater if these can be typed into the original version of the Poder and a fresh copy printed rather than have them inserted in manuscript. Indeed manuscript amendments are somewhat frowned upon by the Spanish authorities.
Once the Poder has been executed it will be necessary for the notary to obtain an “Apostille” from the Foreign and Commonwealth office. This is necessary to authenticate the Poder for acceptance in Spain. This usually takes a few days to resolve.
For how long does a Power of Attorney last?
Poders are automatically revoked by the donor’s death, insolvency or loss of mental capacity. In addition the donor may revoke the Poder at any time, but this has to be done by a formal legal deed. Otherwise, the Poder remains in force until it has been revoked. This could mean that the Poder remains valid for the rest of the donor’s life! Some Poders are limited in time and it is always possible for the donor to ask their Spanish lawyer to include a suitable clause. A donor may think, therefore, that it would be a good idea to make a formal revocation and request the attorney to return the original deed and any copies back to him once the transaction in respect of which it was made has been completed.
Obligations of the attorney and the donor
The attorney must follow the donor’s instructions and not exceed the powers given by the Poder. If he is negligent in the performance of his powers he may be liable for damages, but of course that would mean the donor having to bring legal action against the attorney – an expensive exercise, often with an uncertain outcome.
The donor is bound by the proper acts of the attorney and must compensate the attorney for any damage that he may suffer in the performance of his duties.
Whom should be appointed as an attorney?
Having read the above you will appreciate that the appointment of any attorney involves an element of risk. It is essential that the attorney should be a reliable individual or come from a professional firm who can be trusted to carry out his duties faithfully and with all due diligence. Seek a recommendation from other property owners who have used attorneys in Spain in the past.
How can I help?
As a fully qualified Notary Public I have dealt with dozens of Poders over the years. I am able to ensure that the document is correctly completed, executed and witnessed before sending it off to obtain an Apostille from the Foreign and Commonwealth Office. Give me a call on 07583 379 147 if I can be of assistance.
The legal bit
The information and opinions within this article are for information purposes only. They are not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. N L Oakes, Notary Public shall accept no responsibility for any errors, omissions or misleading statements in this article, or for any loss which may arise from reliance on materials contained in this article. Certain parts of this article link to external Internet sites, and other external Internet sites may link to this article. N L Oakes, Notary Public is not responsible for the content of any external Internet sites.
