Preventive powers are legal transactions of empowerment that respond to the will of a person who, in anticipation of a future situation of loss of capacity, decides to authorize another person or persons to act validly on their behalf in different areas.
When someone cannot fend for themselves (whether for mental or physical reasons) it is necessary to start a process of incapacitation that can last a considerable time. While waiting for the declaration of incapacity and the appointment of a guardian, there are a series of fundamental actions that no one can exercise for the person who has become incapable, such as personal care, the administration of their assets and the management of their personal and professional affairs.
Through preventive power, a person can avoid judicial incapacitation if, when he has full faculties, he anticipates the cognitive deterioration that a disease or age can cause.
Therefore, the preventive power is a mechanism to protect the interests (personal and/or patrimonial) of a person in the event of a sudden loss of capacity, and this is established in article 222.2 of the Civil Code of Catalunya.
At the time of granting the preventive power there are two possibilities:
- Grant an ordinary power of attorney that displays its effects from its granting but that, in addition, subsists and maintains its validity once the incapacitation of the principal has been declared (extended power of attorney).
- Grant the power but only display its effects or enter into force when the principal is declared incapable (power of protection).
In relation to this second modality of preventive powers, to prove that the situation of need for support has occurred, the principal’s forecasts will be followed, that is, we can decide how it will be necessary and who has to prove our inability to be able to use our power preventive, for example, by providing a certificate from a doctor or a specialist.
Likewise, it is advisable to limit the powers that are granted in favor of the future proxy, avoiding, for example, self-contracting, the power to endorse or donate in order to protect the patrimony of the principal, as well as not including the possibility of requesting copy of the power of attorney, possibility of substitution thereof in favor of third parties, and all this to ensure that the attorney does not overreach or can act for their own benefit and not for the interests of the principal.
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