Preventive power in case of incapacity

The issue posed by a possible incapacity can be resolved through various institutions, such as guardianship or curatorship, depending on the case, but these are slow and complicated processes. However, one can also resort to the figure of the preventive power of attorney, which is nothing more than a simple notarial power of attorney whose purpose is the care of the estate and even of the person themselves in anticipation of being incapacitated at some future time. That is, it is a notarial document in which the interested person grants more or less broad powers to another person to manage their estate and/or their person in the event of incapacity.

What we have just explained can be better understood with an example. Let us consider an elderly person who has accumulated an estate throughout their life and who, due to various circumstances, requires special care, which would entail a significant expense for them and their family, and, furthermore, becomes incapacitated, preventing them from taking care of themselves and their assets. Two situations may arise:

• If they have not granted any power of attorney, the affected person would not be able to sell or dispose of their assets to meet their needs, nor even make personal and medical decisions. In this case, the solution would involve a judicial incapacity procedure, the appointment of a guardian or curator, and even prior judicial authorisation each time the sale of an asset was necessary. This would entail a cost in terms of time and money.
• If they had granted a preventive power of attorney, on the other hand, the person they had designated could sell assets, manage them, and cover the expenses required for their care, without the need to open any judicial process, thereby facilitating the care of the person themselves and providing greater peace of mind to those around them.

The main characteristic of these documents, besides the ease, speed and cost-effectiveness of their execution, is the significance of the will of the person granting it. It is the interested party themselves, and possible future incapacitated person, who decides who will be in charge of managing their person and assets, what powers are granted or the period in which such powers begin to be exercised. In other words, it is the interested party themselves, who may be affected by incapacity and who best knows their personal and financial situation, as well as that of their environment, who decides on who, how and when the representation will be exercised, without a third party, such as a judge, substituting that will.

Below, we detail the main points to consider when granting a preventive power of attorney deed.

This decision is, of course, the most important one that the person granting the power must consider. Who will they entrust with the task of caring for their person and assets? Logically, it should be people of their utmost trust and closeness, generally those closest to them, whether the spouse, their children, grandchildren, parents, siblings, etc. It should be noted that at this point Notaries, in the exercise of our duties, ensure that the person granting the power wishes to grant it to the stated person, and that their will has not been forced or coerced to do so, thus protecting the interests of the person concerned.

The person granting the power can freely choose the powers they want to give to the people they trust and can even decide whether these powers apply to their entire estate or to specific assets. Thus, we can differentiate between:

• General power: includes all possible powers, including the sale and leasing of assets, representation in inheritances, business management, administration and disposal of bank balances, and even medical and healthcare decisions. For example, the power to donate the represented person's assets would be excluded.
• Special power: This is one that limits the power to one or several powers or to one or several assets. For example, being able to dispose of the money in bank accounts but not sell properties, or only being able to sell this or that house.

It should be borne in mind that the broader the powers granted, the greater the risk of abuse by the person receiving the powers, with the general power commonly known as the power of ruin, so it is very important to carefully analyse to whom the power is given.

Regarding this point, the power of attorney can begin to take effect whenever the grantor wishes. It is very common for the person granting the power to want the recipient to start using the power from the very beginning, even if they are not incapacitated, but, nevertheless, it is their wish that if they do become incapacitated, the power can continue to be used, as if nothing were said, the power would be ineffective once incapacity has occurred.

A purely preventive power of attorney can also be granted, that is, one whose effectiveness does not arise from the outset, but only once the principal becomes incapacitated, in which case the attorney, in order to use the power, will need to prove this situation with, for example, a medical certificate that certifies it.

Yes, the limitations that are desired can be included. Some limitations we have already mentioned; the moment the power begins; the powers that are conferred; the way of exercising the power, whether jointly or severally. These are limitations that the person granting a power can take into account.

Among other limitations, it can be decided that for selling certain goods judicial control is or is not necessary and that it is the judge himself who authorises the sale. This, evidently, provides much more security for the person granting it but it is also more complicated and costly to obtain, potentially being contrary to the purpose for which the power was conferred. Speed and cost reduction.

To process a preventive power of attorney in case of incapacity, you must go to a Notary to carry out a power of attorney deed. Make an appointment at our Notary in Barcelona. The procedure is quite simple and only a capacity hearing of the person is required.

Therefore, to grant a preventive power of attorney, it will be necessary to go to the Notary to sign the preventive power of attorney and have sufficient capacity by the person granting the power.

We will advise you on the importance of granting power to the appropriate person, the type of powers conferred in the event of subsequent incapacity and the exclusion of any if necessary, when the preventive power due to incapacity can begin, how the appearance of incapacity should be indicated and the control measures if necessary.

The Notary is a legal professional who will advise you impartially, seeking the best solution for each need and guaranteeing a final solution that complies with current legislation. Thus, they will authenticate documents and legal acts to ensure the legal validity of transactions and protect your interests.

The necessary requirements to grant a power of attorney are fundamentally three:

• Willingness to grant the power and knowing and understanding the consequences of granting it. At this point, the role of the Notary comes into play, to verify that the person granting it is not doing so under duress or deception, but freely, and above all to provide the advice and assistance needed completely free of charge.
• Attending with the corresponding identity document.
• Personal details of the person or persons to whom the power is to be granted.

If the power of attorney establishes that the effects will only begin in the event of the principal's subsequent incapacity, it will be governed by what is stipulated in the power of attorney. The most common practice is to establish in the power of attorney that it only takes effect in the event of subsequent incapacity, that the attorney who uses the power presents medical reports proving the principal's subsequent incapacity and that these are attached to the power of attorney.

In general, it should be said that the price of notarial acts is regulated by the Government and complies with the regulatory framework of the NOTARIAL FEE SCHEDULE (RD 1426/1989, of 17 November, regulating the Notaries' Fee Schedule).

However, the exact price of a notarial document cannot be calculated with absolute precision until its specific content is known, that is, until it is signed, as there are many circumstances that can cause it to vary. The number of copies requested of a document, the number of pages it contains, as well as possible changes or additions, can slightly alter the final price.

If you wish to receive a detailed quote, we invite you to contact us directly through the method that is most convenient for you. You can do so via the contact form on the main page of this website, through the contact section found in the footer of the website, using the direct access to WhatsApp at the bottom right of this page, by sending an email to bcn@jlanotarios.com or by calling us on 93 159 17 62.

As a guideline, we can inform you that, according to the current regulatory framework, the usual price for the formalisation of a preventive power of attorney is between €150 and €250, including VAT.

This indicative price is calculated for a document of usual content (8 pages) and with the issuance of a single authorised copy and two simple copies.

In the case of processing a reciprocal preventive power of attorney between the two parties involved, the cost would rise to between €150 and €290, including VAT.

Price variations are due, among other reasons, to the fact that there are several possible configurations of a preventive power of attorney, and thus, the power may be longer or shorter and may take effect from the granting as a normal general power of attorney as well as preventive, or it may be purely preventive.