The preventive power in Law 8/2021

Law 8/2021, of 2 June, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, is the most important reform of the Spanish legal system in the last forty years, making profound modifications to nine important laws. However, it does not constitute a basic law in civil matters, so the Autonomous Communities with regulatory capacity will develop their own support programme, in implementation of the New York Convention of 2006. Especially Article 12.

The difference between the Spanish civil systems will require the application of the rule of conflict established in art. 9.6 of the Civil Code, on support measures, and the reference to personal law in art. 9.1 on capacity - a concept based on a criterion prior to the reform - and which leads to civil status, should be understood to have no content. The design of the Civil Code is based, among other classifications of support measures for the person with disabilities, -with judicial incapacitation suppressed-, on measures of a voluntary and judicial nature. The former, when they are regulated, i.e. outside the de facto guardianship, are always notarial, and may be prior to the situation of disability or subsequent to it. There are two types of pre-disability measures: self-guardianship and preventive power of attorney.

This figure, which is widespread in practice, was introduced in Law 41/2003, and was modified by Law 1/2009. It is contemplated by the law in two ways: as a support measure and as such representative, necessarily underlying a mandate, and as a representation that is not extinguished by the loss of capacity. It must be established in a public notarial deed to be registered in the Civil Register, with the utmost diligence.

A power of attorney can therefore be defined as the granting of representation or a non-representative power of attorney by a capable person in the event of becoming a person with a disability to one or more persons with freedom of form in a notarial deed.

The power of attorney conferred in this way can be established only in the event of the grantor's loss of capacity, in which case it will be necessary to prove this loss of capacity in a range of options ranging from the granting of a supplementary deed or even, if this has been established in the public deed, by the mere declaration of the attorney-in-fact. However, it can also be used regardless of the grantor's disability, which has been common practice up to now and which will have to be assessed in the future, as there may be confusion in its legal treatment.

From the entry into force of the law on 3 September, the wording of these powers of attorney will require the establishment of safeguards, specific instructions or, where appropriate, measures and control bodies for the attorney-in-fact specifically aimed at the grantor's disability. This is because the preventive power of attorney gives the attorney-in-fact, as the holder of a representative support measure, a position of less control than that of a representative guardian, who must provide a bond, take an inventory, is subject to judicial authorisation in numerous acts and is accountable for his or her actions.

The Grand Chamber, taking into account all the above considerations, ruled that the Member State of which the minor is a national is obliged, on the one hand, to issue him with an identity card or passport, without the need for its national authorities to establish a birth certificate beforehand and, on the other hand, to recognise the document issued by the host Member State which allows the minor to exercise, with each of his parents, his right to move and reside freely within the territory of the Member States.

The liability of the attorney-in-fact is not determined, as a measure of support, since the action provided for in Art. 294 of the Civil Code is for the curator, who is liable for damages caused by fault and negligence to the person he supports, within the limitation period of three years from the final rendering of accounts. However, this is not the case with the attorney-in-fact, who is not subject, as has been said, to more controls than those resulting from the public deed, so that the non-contractual liability will be adjusted to the period of one year from the damaging event or from the time he knows of it, in good faith, It is doubtful whether a different time limit can be set by the principal as a voluntary measure, since liability is not available and the law does not provide for the possibility of regulating a non-judicial guardianship. In general, liability is a matter that is not clearly established in the law. The exercise of these powers, qualified within the civil powers, is personal, the care of the person being non-delegable, although it is possible to entrust -sub-proxy- in one or several specific acts to third parties.

It must be understood that the limitation on the substitution of powers of attorney or sub-authorisation refers to the time in which the principal becomes a person without capacity and that in any case it cannot alter the content entered in the Civil Register, unless a new power of attorney is granted. On the other hand, the law now clarifies that the power of attorney subsists even in concurrence with other support measures, including representative guardianship, and is only extinguished - unless otherwise provided by the grantor - at the request of a legitimised person and if there are grounds for the removal of the guardian. A special rule is established for the attorney-in-fact of a spouse or cohabitant, with an indirect modification of Art. 102 of the Civil Code. Finally, preventive powers of attorney are known in Catalan law (Art. 222- 4 of the First Book of the Civil Code, modified by Law 10/ 2017, of 27 June and Navarre (Law 49 of the Fuero Nuevo, in the wording given by Art. 2 of the Ley Foral 21/2019). For foreigners resident in Spain, the connection must be understood to be the same, the habitual residence, as a support measure. In the representative part, it will be necessary to comply with art. 10.11 of the Civil Code, regarding the exercise of the power of attorney in Spain, in the absence of express submission (not regulated in R. 593/2008, Rome I) and its registration in the Central Civil Registry must be requested, after registering its birth as a supporting registration, despite the indeterminate wording of Law 20/2011.

In short, the preventive power of attorney gives great flexibility to representative and voluntary support measures, but also insecurity to the principal, the only guarantee being the design of the public deed.

Notaries bear a great responsibility