The Spanish Civil Code
It is not uncommon nowadays for our firm to receive enquiries from clients worried about the impact of debilitating diseases of dementia such as Alzheimer’s on their relatives, in particular with regard to the management of their assets in Spain.
Of course it is almost always recommended to create a last will and testament in Spain to deal with any Spanish assets. The Spanish Civil Code states however, as a general rule, that people under 14 years old and anyone suffering a mental illness may not create an effective Will. Should the Will have been drafted before the mental illness affected the individual creating the will, then it is legally valid.
When we talk about mental illnesses we are particularly concerned with the individual’s mental capacity i.e. any mental disorder or any situation that affects the power of a person to express their intention or will.
In order to determine the extent of any mental incapacity, usually a capability test is carried out by the Notary, where the will is drawn-up. However it is always good to get a certification in advance from a doctor that declares the person as having such capacity in cases where there might be any doubt.
Should the disease have progressed to the point that it is not possible to create a valid will then it will become necessary to appoint a guardian who will do this on their behalf. This will require civil proceedings to be undertaken in court, which will determine who the guardians are and also the attributions, obligations and prohibitions that the guardian is subject to, such as are laid out in title X of the Spanish Civil code.
Exequatur & Enduring Power of Attorney
Of course, there are many examples of those who have undergone this procedure in their home country. If this is the case, then the ‘guardianship’ already obtained in the foreign jurisdiction may be validated via the exequatur procedure, which is how most foreign court orders are enforced in Spain.
Any ‘Enduring Power of Attorney’ created in a foreign jurisdiction and which allows you to manage the affairs of someone after they become mentally incapacitated will need to be legalised, ie have the Hague Apostille attached and the power of attorney will need to be translated into Spanish by an approved translator so that it may be used in Spain.
In any event, any last will and testament that a guardian makes in the name of the person they represent must meet the Spanish regulations for valid Wills and we need to make sure
that is not going against the true will of the person that is represented, by taking into consideration previous Wills or the testimony of relevant witnesses.
Often these types of situations are quite delicate so it is always good to seek legal advice to make sure that the necessary diligence that this situations requires, is applied.