Is it correct that a registered Lasting Power of Attorney for someone (who has now lost capacity) will not be recognised in Spain, even if certified as a true copy by a Notary? I have a wife who wants to be able to sell her husband’s Spanish property. If so, should she apply to the Court of Protection for a deputyship that will then be recognised, or is there a Spanish procedure that would be better? Can she retain the Power of Attorney for English assets (with its simplicity of use) and have a deputyship order to cover just the Spanish ones?
My understanding is that an English LPA is not recognised in Spain. The fact that a copy might be certified by a notary should not change the underlying acceptability (or otherwise) of the power.
I also understand that the Court of Protection has no jurisdiction in relation to foreign moveable property, so that it will be necessary to seek advice in Spain to identify the appropriate procedure for dealing with the property there.
I have recently prepared a general Power of Attorney under the 1971 Act, that was notorised here in the UK both in original form and in translation, that was used by a daughter to sell property belonging to her mother in Spain who could not travel due to her cancer treatment. I understand that it has been accepted and the transaction completed. I trust that helps.
I agree with Paul Saunders that Spanish legal advice be sought. The Spanish immovable property is governed by the law of the place where it is situated. I would think that advice needs to be obtained as to the effect of the Power of Attorney in Spain. Does it for example cover the Spanish property - if not I expect the Wife will have to start in Spain with local legal advice. If local Spanish legal advice is that an English POA (duly notarised etc) will be effective in Spain, then perhaps the UK Court of Protection may have to approve a Power of Attorney limited to dealing with the Spanish real estate and in a form that it will be effective in Spain.It is important to obtain Spanish legal advice first, as otherwise the whole exercise could be a waste of time and money.
Also are there movable personal items such as antiques, pictures etc in the Spanish property which are valuable, as if they are valuable then again Spanish legal advice should be sought as their sale or removal from Spain could be subject to restrictions.
just lend some reference from my experience in China.
In order for a POA to be accpetable for disposing of real estate, the POA shall have to be clear about the location of the property and include all necessary powers in course of each step of the sale throughout the whole process. In most cases we handle for foreign clients in selling properties in China, the POA even covers our power to help clients to repatriate sale proceeds out of China.
So far as I understand Lasting POA or Enduring POA or General POA (as we don’t have such concepts in China), these POAs refer generally to any and all assets without specifying each item of those assets (too much a trouble). But in practice, it may be good to specify real properties.
Also it is my understanding regardless where the property is located, the POA denoting an agency relationship shall be governed by the laws where the agency relationship is created. But whether it can be accepted is a question of the local law where the property is located.
I have colleagues who dealt with the sale of a Spanish property and the LPA was accepted in Spain once we provided a legal opinion about its validity under English law.