If you are a European citizen and do not have a Will, have you ever thought about making a Power of Attorney to secure your interests in case you suffer some kind of disability in the future?

It is surprising how little precaution we all take with regard to these matters, there is a general lack of knowledge on the subject. The most usual thing is to ask ourselves about the living will, but only at specific moments of our existence.

We would like to highlight with this note, the importance and necessity of knowing these two figures that without any doubt we should, in anticipation of our future, perfect them before a notary, thus avoiding future problems for us and our relatives.

Fortunately, there are several legal tools that can avoid situations such as the one described in the previous paragraph. In this way, any person can make decisions about their interests, when they are perfectly capable, in the face of a hypothetical and future situation of incapacity. The preventive power of attorney is one of those instruments that the law places within our reach.

We will briefly give a few nuances of each figure, the complete information being available in the published articles whose links are attached.

THE EUROPEAN REGULATION ON SUCCESSION AND THE CREATION OF A EUROPEAN CERTIFICATE OF SUCCESSION.

In the European area of justice, it is necessary to make it possible for citizens to prepare their succession in advance.

One of the consequences of the increasing mobility of persons within the European Union is the growth of successions with an international component. In many cases, such successions present difficulties and complexity due to the disparate way in which succession is regulated in the laws of the different member states.

The Regulation adopted by the European Union aims to unify European succession law in terms of jurisdiction, applicable law and the recognition and enforcement of succession decisions within the European Union.

The Regulation aims to preserve not only the right of a person to decide the fate of his or her property in anticipation of death, in accordance with the law of his or her choice, but also, and above all, to ensure that his or her will is carried out in accordance with the same law. In this respect, it should be emphasised that the rule aims to strengthen confidence and certainty in the implementation of the last will of EU citizens, in accordance with the principles of unity and universality of succession.

For reasons of legal certainty and in order to avoid fragmentation of the succession, it is necessary for this law to govern the entire succession, i.e. all assets and rights, irrespective of their nature and whether they are located in another Member State or in a third State, which form part of the estate. This does not entail any diminution of the rights of the persons entitled to a reserved share.

The principle of free choice of applicable law is reflected, according to which ‘any person may designate the law of the State of which he is a national at the time of making the choice or at the time of death’. However, in the event that the deceased has neither made a will nor, consequently, been able to choose the law governing his succession, the Regulation provides that his intestate succession will be governed by the law of his habitual residence at the time of death, which, in the absence of clear criteria, means the law which reveals ‘a close and stable connection with the State in question’.

POWERS OF ATTORNEY: AN INSTRUMENT OF SELF-PROTECTION IN CASES OF DISABILITY

This legal garment is acquiring extraordinary dimensions and offers a wide range of possibilities, as all kinds of powers can be established, both in terms of personal, health and property.

We are not only talking about a product related to old age, it can also be related to a degenerative disease such as Alzheimer's or a traffic accident that causes a situation of physical or mental paralysis and is therefore a great alternative to the modification of the capacity to act.

The preventive power of attorney is an instrument of self-protection to which any person can resort, in the event of incapacity, to designate a trusted person who can look after his or her personal and property interests. This power of attorney may contain a wide variety of provisions:

• Of a personal nature: such as, for example, determining the way in which care should be received, the medical institutions to which one should go for health care, the place in which one wishes to reside, etc.
• Property: such as how your movable or immovable property should be managed (including encumbering or disposing of it) or your bank accounts and products.

Thanks to medical advances, life expectancy has increased considerably in recent decades. As a consequence, there is a high probability of reaching old age, but also of suffering from age-related illnesses that can lead to some form of disability.

You may know of cases close to you of elderly people who have become incapacitated. When there is no power of attorney, a declaration of incapacity and the appointment of a guardian must be requested through the corresponding judicial process. In many cases, this procedure is obligatory, for example, when it is a question of selling a property. In this case, the guardian also needs to be authorised by the court.