The mandate with preventive powers must specify the rights involved, the scope of representation, and the conditions of exercise, and is freely revocable by the grantor. It can be:
- With representation: the attorney-in-fact acts in the name and on behalf of the principal, without directly assuming rights and obligations;
- Without representation: the attorney-in-fact acts in their own name, assuming the effects of their actions.
Its validity depends on the grantor being fully capable at the time of signing, as recognized by a Notary or Lawyer.
Another related figure is the living will/advance healthcare directive, in which the testator declares in advance which treatments and healthcare they wish (or do not wish) to receive when/if unable to decide. This document is valid for 5 years and can be renewed.
The action for adult under guardianship applies when an adult, due to health, disability, or behavior, cannot fully exercise their rights or fulfill their duties. It is a judicial process aimed at protecting the person, preserving their autonomy as much as possible.
In certain cases, the three figures may coexist, but they do not replace each other:
- Preventive mandate: ensures support in various areas of life, limited to the cognitive capacity at the time of signing.
- Living will/advance healthcare directive: defines healthcare in advance, with a preventive character.
- Adult under guardianship: judicial measure applied when incapacity already exists, ensuring protection and rights.
Thus, each figure has its own purposes and limitations, and they may be complementary in protecting a person in a situation of incapacity. For example, an adult with dementia or early-stage Alzheimer’s may, in moments of lucidity, grant a preventive mandate. However, as this lucidity does not last in the long term, there is a risk of granting powers today and not remembering tomorrow.
In this situation, the most appropriate measure would be the action for adult under guardianship, as the mandate may become ineffective and the living will unfeasible, since the person may not be fully capable of validly declaring their will. In these actions for adult under guardianship, if a mandate with preventive powers already exists, “at the moment guardianship is decreed, the court approves the mandate, in whole or in part, and takes it into account in defining the scope of protection and in appointing the guardian” – an example where two of the three figures coexist, but do not replace each other.
Belzuz Abogados, S.L.P. Law Firm provides legal advice by experienced Family Lawyers to ensure all parties have their rights protected.