DRAFTING SPANISH POWER OF ATTORNEY
Once Mr Wagner, solicitor-notary and Spanish lawyer-solicitor-abogado, receives definite instructions to do a Spanish power of attorney for a client, the next step is for Mr Wagner to actually draft it.
Drafting a Spanish power of attorney involves considering what it is for. Normally, a Spanish power of attorney will be to enable someone, (typically a Spanish abogado based in Spain, or a close friend or relative), to buy a property in Spain or to sell a property in Spain or to accept an inheritance in Spain.
If the client needs to defend or commence legal proceedings in Spain, a legal team will have to be granted an appropriate power of attorney.
Once Mr Wagner has ascertained what the Spanish power of attorney is needed for in Spain, the next step is for Mr Wagner to see if any clauses or declarations, in addition to the usual ones, need to be included. For example, if a person now selling a property in Spain originally bought the property in a different name, the change in name can be given an explanation in the power of attorney as drafted by Mr Wagner.
A Spanish power of attorney is normally very widely drafted. This is because every conceivable angle needs to be covered. Missing an ability to do something, for example, on a non-resident in Spain sells a property in Spain a purchaser will need to deposit a percentage of the stated price with the Spanish tax authorities to cover, wholly or in part, for the vendor's liability to state capital gains tax. If the vendor is not liable to pay Spanish state capital gains tax, (impuesto sobre el incremento del patrimonio), it follows that the deposit can be recovered from the Spanish tax authorities. The Spanish tax authorities will not pay that money out to just anyone. The Spanish tax authorities will want to see that the person reclaiming the money is duly authorised to reclaim that money.
In short, it is not possible to draft a Spanish power of attorney on the same basis as an English power of attorney might be drafted, ie it is not possible to grant someone in Spain the power to, for example, sell a property in Spain, and for all the powers the donee might need to be implied therein. The powers, often also called faculties, that a donee needs, have to be expressly stated, line by line, and in Spanish, in the actual document itself.
In addition, Mr Wagner normally includes a photocopy of the relevant page(s) of the donor's passport, ie the page(s) with the photograph and signature, at the back of the Spanish power of attorney.
Mr Wagner is not aware of any legal requirement that a photocopy passport be included in the Spanish power of attorney, but he has found it useful that it be included therein.
Once the Spanish power of attorney has been drafted, the next step is usually for Mr Wagner to phone the client so that a mutually convenient time and date can be arranged for the Spanish power of attorney to be notarised, ie signed by both the client and Mr Wagner.
Home Page Legalising a Spanish power of attorney Notarising a Spanish power of attorney Contact Mr Wagner Site Map