How legal capacity is managed between UK citizens and Spanish authorities
This is a highly relevant topic for the large number of British citizens who own interests in Spain.
Spain checks legal capacity through a combination of judicial oversight, notarial assessments, and, since 2021, with a focus on providing support measures rather than outright removing capacity. The primary focus is assessing whether a person can understand the decisions they make at the time they make them.
Please find below how legal capacity is assessed in Spain and how to resolve UK-Spanish capacity issues:
1. Judicial Procedures:
• Court ruling: According to Article 199 of the Spanish Civil Code, a person can only be declared incapable by a judge.
• Process: Family members of the individual in question or the Public Defender (Ministerio Fiscal) can initiate proceedings for a declaration of incapacity if someone cannot manage their own affairs due to persistent diseases or disabilities (mental or physical).
• Assessment: The court listens to the individual, family members, and reviews medical reports to determine if a “curator” (curador) is needed to provide support to the individual in exercising their legal capacity.
• Outcome: The court will determine the specific, limited areas where a curador’s support is needed – rather than giving the curador sweeping powers.
2. Notarial Checks:
• Spanish notaries: Notaries are considered “gatekeepers” who verify the legal capacity of parties signing contracts, deeds, or powers of attorney.
• Assessing capacity: If a person wishes to grant a power of attorney, the Spanish Notary will personally assess if they have the mental capacity to understand the document’s scope.
• Preventative Power of Attorney (equivalent to the LPA in the UK): Individuals can proactively sign a document in front of a notary appointing someone to manage their affairs if they lose capacity in the future.
• Medical evidence: In cases where capacity is in doubt, notaries may require medical certificates.
3. Key legal principles:
• Age of Majority: Full legal capacity is generally reached at 18 years old.
• Support measures (not substitution): Since 2021 reforms, Spanish law heavily favours the use of a “curator” (curador) to assist in decision-making, rather than appointing a guardian (tutor) who acts on behalf of the person.
• Registered records: The Spanish Land Registry and Companies House also act as check-points, ensuring that individuals signing property or business contracts have the legal capacity to do so.
4. Voluntary support measures:
• Curatorship: This is the main figure designated to help individuals with disabilities, enabling them to exercise their legal rights. If an individual has already lost mental capacity and no proactive steps (like a Power of Attorney) were taken prior to losing capacity, the interested party must apply for a court-appointed curator.
• Living Will: Individuals can specify medical decisions in advance before a notary or administration service.
Disclaimer: This note is provided for general information only and does not constitute legal or tax advice. Spanish succession law is complex, region-specific and fact-sensitive, and professional advice should always be taken before any action is taken.
For tailored advice on Spanish succession planning, British nationals with Spanish assets should seek specialist cross-border legal and tax support at an early stage.
Please contact Yolanda Perez Berges at yolanda.perez@theburnsidepartnership.com for more information.
