Using a Lasting Power of Attorney for a Property Transaction

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Using a Lasting Power of Attorney for a Property Transaction

A Case Study on using Powers of Attorney when Mental Incapacity.

A while back we received an enquiry similar to this below:-

“I have been reviewing your website for information regarding a proposed gift of a property in Spain.

I would be grateful if you’re able to confirm if you’re able to advise on the matter below:

– My parents jointly own a property in the Alicante region. They would like to transfer this property to me as a gift.

– A few years ago, my mother and I put in place Lasting Powers of Attorney covering both health/welfare and financial affairs on behalf of my father who has Alzheimers.

I would appreciate if you’re able to confirm if the gift of the property under Spanish law would be possible given the above circumstances? If so, do please provide an outline of costs/actions and legal fees for the transaction.”

Two types of Lasting Power of Attorneys replaced the old Enduring Power of Attorney in the UK in 2007.

A solicitor can help with a change of ownership of property transaction even when there is a Lasting Power of Attorney because someone has say dementia, or Alzheimers, and unfortunately can no longer sign for themselves.

We need to see the actual wording of the power of attorney, it will need to be registered with the Office of Public Guardian if a UK document, and  to be apostilled with a Hague Apostille for international use.

We will also need a copy of the deeds and Suma/or IBI in order to calculate costs, and require other powers of attorney in favour of our solicitor from other parties involved than the one who could not sign themselves.

Clients are sometimes surprised that they cannot just continue to use a power of attorney when someone has reached a stage whereby they do not know what is going on, or what they signing.

Power of attorneys are generally no longer valid when the person giving it no longer has mental capacity and anyone using it is acting incorrectly at best. The right thing to do is register the power of attorney with
the Office of the Public Guardian after it has been made. A person can register an Lasting Power of Attorney if they have mental capacity. If mental capacity is lost after the forms are signed but before registering, the attorney appointed can register the Lasting Power of Attorney.

In Spain, things are not quite the same. A power of attorney generally could not be used if mental incapacity however there is a way of drafting a special Spanish power of attorney or mandate, which can include facilities for when you are incapable. This does not have to be registered with the Court and is very
limited. Obviously there must be absolute trust between the donee and the person who will use the power.

If we can help with any matter, such as a dealing with passing over property to children when someone has Alzheimers or Dementia or another form of mental incapacity and and there is a Lasting Power of Attorney in place please contact us enquiries@spanishsolutions.net.

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