By Welex, your lawyer specialized in real estate law in Spain has the pleasure of writing a few lines about preventive mandate in Spain.
The Power of Attorney or preventive mandate in Spain, although it does not have an adequate development in the Spain’s legal system, the doctrine includes a type of power of attorney or mandate by which the principal or principal designates a person, in anticipation of a possible supervening disability (incapacity in fact) to act in cases where it cannot manage its own legal business in Spain.
As we say, it is not expressly regulated in the Spanish legislation. However, the Civil Code in Spain in its article 1732 establishes the following:
When does the preventive mandate in Spain ends:
1º By its revocation.
2º Due to resignation or incapacity of the representative
3º By death, declaration of prodigality or by bankruptcy or insolvency of the principal representative.
Keep saying this article:
The mandate will also be extinguished by the supervening incapacity of the representative unless the continuation of it had been provided therein or the mandate had been given in the case of incapacity of the principal appreciated in accordance with the provisions of the latter. In these cases, the mandate may end by judicial resolution issued when the guardianship body was constituted or later at the request of the guardian.
It is in this last section where the possibility is foreseen that the mandate continues even if the incapacity of the representative occurs, although the last word will in any case be the judicial authority, with respect to the effectiveness that this power of attorney may have in the event that go to court to decree the (judicial) incapacity of the principal / principal. This does not mean that the preventive power and the judicial declaration of incapacity cannot be complementary, in such a way that the judicial decision takes into account the personal will of the person who, in their full capacity, granted power in favor of a person of their full trust.
The power of attorney or preventive mandate in Spain must be granted by a notary in a public deed, who will issue a judgment of the capacity of the person who will be the representative at the time of granting the power of attorney.
We can distinguish two cases of preventive mandate in Spain:
- Assumptions of empowerment that are granted in anticipation of the supervening incapacity of the representative and that will have its legal effects when the incapacity is verified and not before. In these cases, the power of attorney will take effect from the moment the incapacity is manifested (de facto or judicial incapacity).
- Assumptions of empowerment or continued power of attorney, that is, powers that have already been granted but that persist even if the principal is incapacitated, since this has been expressly stated by means of a specific clause that is thus included in the power of attorney.
In both cases, the mandate may end by judicial resolution if an incapacity procedure is initiated with the subsequent appointment of a guardian other than the attorney-in-fact. In any case, we understand that in the procedure of declaration of incapacity the judge must specifically decide about the validity or not of the preventive power.
In relation to the powers that can be granted to the attorney-in-power, given that it is a unilateral and highly personal act, the free will of the representative prevails, therefore those can be very broad, covering both the personal facet of the principal, as well as powers of disposition and administration of his patrimony.
Thus, among the faculties of the personal sphere, the same principal can indicate in the power those medical questions that must be taken into account (here the figure of the living will we could be entered); on the degree of incapacity that the principal must achieve in order for him to take effect, degree of incapacity that can be certified by a doctor; questions about residence, initiation of incapacitation proceedings.
This figure of “preventive mandate in Spain” is exciting, It can solve many situations in cases when in a situation of incapacitation where we cannot fend for ourselves.
Do not hesitate to contact the legal professionals of Welex who will assist you on these issues of preventive mandate in Spain or any other you may have. Welex is here to answer your questions. We are the best lawyers in Marbella specialized in real estate law in Spain.