Can I get a notarial power of attorney in case of incapacity?

Question

José Manuel Alburquerque · Accepted Answer

Yes, but the person must grant it themselves before a notary, while they can still understand what they are signing. This is the lasting power of attorney (“poder preventivo”), with which someone chooses a trusted person to act on their behalf once they can no longer manage their own affairs, or from now on and then as well. If the person can no longer understand or express their wishes, no notary will authorise the power of attorney and nobody can sign it for them. In that case, the court must be asked for a support measure, such as assistance (“asistencia”). The lasting power of attorney Since 2021 nobody has been declared incapable by a court. Judges put in place, where needed, the support each person requires. In Catalonia, since then, adults are no longer placed under guardianship. The lasting power of attorney is one of the forms of support that people can choose for themselves and the “Código Civil de Cataluña”, the Catalan Civil Code, regulates it as follows: It is granted by public deed before a notary, who checks on the day that the person understands what they are doing. A diagnosis, such as Alzheimer's in its early stages, does not in itself prevent it. If there is any doubt, it is advisable to bring a recent medical report. It can take effect from the moment it is signed and remain in force when the person can no longer manage their affairs. Or it can take effect only once the circumstances set by the person themselves arise. In that case, it is advisable to state how they will be proved, for example with a medical report. If the person granted a sufficient power of attorney in time, in principle there is no need to ask the court for any other support measure. As long as the person retains capacity, they can revoke or change it. It ends on their death. Anyone who can still make decisions, but needs help to do so, also has another option. They can appoint before a notary, without going to court, a person to help them make their decisions. This is assistance, which can also be put in place by a court, as explained below. The Catalan rules on these powers of attorney will change in 2027. What it should contain What the attorney can do. If the attorney is to be able to sell properties or carry out other important acts, this must be stated expressly and in detail. Who oversees it. The law allows control measures to be set, for example that the attorney must account every year to another relative or to a trusted person. When it ends. If the attorney is the spouse or partner, it is advisable to provide for what happens if they separate. Whom the person would want as support if a court ever had to appoint someone. This can be stated in the same power of attorney or in another deed before a notary. The court will take it into account. If the person can no longer grant one If the person can no longer understand what they would be signing, they cannot grant the power of attorney. The court must then be asked to put a support measure in place. In Catalonia, the one regulated by the Catalan code is assistance. It can be requested by the person concerned, their spouse or partner, their descendants, their ascendants, their siblings and the “Ministerio Fiscal”, the Public Prosecutor's Office. The court appoints the person who will provide that support, the assistant. Only in exceptional cases can it allow the assistant to represent the person in the acts it specifies, that is, to act on their behalf. In most of the rest of Spain, the Spanish Civil Code (“Código civil”) regulates a similar power of attorney. If the attorney is the spouse or unmarried partner and they stop living together, the power of attorney ends automatically, unless the person who granted it has said otherwise or the cohabitation ends because the grantor has had to move into a care facility. If it can no longer be granted, the measure the court normally puts in place is curatorship (“curatela”).