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Case study: cross-border Spain / England & Wales mental capacity

This information has been prepared by Sykes Anderson Perry Limited as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted

Camilla is a widow, her husband died two years ago after a long illness. They did not have any children but had 4 nephews and nieces to whom they were very close. Camilla sold the family home to purchase a buy-to-let flat in London and an apartment in Mallorca which she has relocated to. She has bank accounts and investment portfolios in the UK and in Spain she opened a couple of bank accounts to pay the maintenance costs of her property as well as her living costs. During a recent visit by one of her nieces, the niece noticed that Camilla was behaving in an odd manner.

Camilla visits the doctor who assesses that Camilla is in the early stage of dementia.

Camilla speaks to her nieces and nephews and confirms that under no circumstance does she want to return to the UK as she is very happy enjoying the quality of life that the island has to offer.

It is important to act fast, before Camilla loses capacity. Spain and England have different approaches when it comes to instruments available for persons lacking capacity. In England and Wales Lasting Powers of Attorney (LPA) are frequently used. Camila could appoint one or more attorneys, for instance her nephews and nieces, to act on her behalf. The LPA could allow them to make decisions on her behave when she is no longer able to do so. Camilla can request that the LPA is registered at the Office of the Public Guardian as soon it is signed. There are two types of LPA, one for finances and another one for health welfare.

In Spain, the situation is different. Whilst Camilla still has capacity she should visit the offices of a notario to grant a power of attorney. This power of attorney must have a clause confirming that Camilla wishes for the document to remain valid even if she loses capacity. The notario in Spain will have to assess that Camila has capacity to grant this document. The Spanish Power of Attorney will have legal effects from the date it is signed.

The LPA may not to be accepted in Spain and the Spanish power of attorney will not be accepted in UK therefore it is wise to draw up the documents in both jurisdictions

December 2018
Álvaro Aznar Azcárate
Solicitor and Spanish Abogado
Sykes Anderson Perry Limited