Yes, Spain is party, signed on 1 April 2003, ratified on 6 October, and the Convention entered into force on 1 January 2011.

1.1 Which law applies to questions of custody and legal representation of a minor? Which criteria are used to determine the applicable law?

The applicable law is primarily determined by the Hague Convention on the Protection of Children of 19 October 1996.

Under Art. 15 of the Hague Convention on the Protection of Children, the law in the place of the competent court applies insofar as the matter relates to legal safeguards and under Art. 16(1), 17 the right of the law of the state of habitual residence applies as regards the attribution, exercise or forfeiture of parental responsibility by operation of law.

A renvoi (referral) is excluded.

Where the Hague Convention does not specify the applicable law, under Spanish Conflict of Laws Regulations

a) – Art. 9.6 of the Civil Code is decisive. This article states that Guardianship and other protective measures for the minor or incapable person are governed by the national law of that State. However, provisional or emergency protection measures are governed by the law of habitual residence of the child.

b).- Regarding legal representation, Art. 10.11 of the Civil Code, states that legal representation is governed by the law which regulates the legal relationship.from which the powers of the legal representative are derived, and voluntary representation, except for cases with express submission to some specific law, is governed by  the national law of the country in which the conferred powers are exercised.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

International jurisdiction is governed by the Brussels IIa Regulation (EC 2201/2003) and therefore the court of a Member State has jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized (Art. 8).
 Should the Brussels Regulation be ineffective, international jurisdiction is governed by the Hague Convention on the Protection of Children of 19 October 1996, specifying that the court of the habitual residence of the child has jurisdiction (Art. 5). As a subsidiary resort, in Spain the court of the place of habitual residence of the child is generally competent in order to adopt urgent or provisory protection measures (Art. 9.6 CC) and (Art. 22 LOPJ)

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

No distinction is made in international private law between custody and right of representation, therefore the above applies.

a) Spanish Civil Code:
The age of full legal capacity under Spanish law is 18 years of age. From 16 to 18, minors have limited legal capacity.

Up until the age of 18, a basic distinction is made between various stages.

– From birth to the age of twelve, the child lacks legal capacity and cannot enter into any legal transactions.

– Up to 12, the child has very limited legal capacity. During this phase, minors might be “listened” to by the court to accept being adopted if they have sufficient capacity to make sound judgements.

-From 12 to 14, minors can consent to their own adoption.

-From 14 on minors can make a last will (Art.663 CC).

-From 16, if minors are emancipated, they can get married (Art.46 CC).
If the minor is not emancipated, the Courts can give permission to marry, as long as the minor is over 14 years of age (Art.48.2 CC). Nevertheless, marriage produces emancipation.

b) Legislation of the autonomous communities:
b.1.- Aragón (Código de Derecho Foral de Aragón –C.D.F.- adopted by Decreto Legislativo 1/2011, 22 March):
Adult (Art.4):
– Anyone who is 18 years old;
– And the one who has entered marriage. Marriage does not produce emancipation by itself, but determines full legal capacity. Should the marriage be declared invalid, that declaration does not affect the full capacity acquired by the spouse as a consequence of marriage if marriage was concluded on good faith.
 

b.2.- Navarra (Compilación de Derecho civil foral de Navarra, adopted by Ley 1/1973, 1 March)

Capacity of the minor:
According to law 50, full capacity is achieved at 18 years of age, when the person is considered an adult.

2.1 Is it possible that in some cases the legal capacity of a minor is extended (e.g. right to get married, right to make last will)?

Yes

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

The extension on the legal capacity corresponds to the parents, who are the legal representatives of the minor and who complement its capacity in certain cases when it is needed.

Nevertheless, in certain cases the minor can get in advance “almost full” capacity known as “emancipación” (emancipation). This is given by marriage (the marriage produces emancipation), by concession of the representatives who have the right of custody (patria potestad) when the minor is at least 16 and gives his/her consent (Art.317 CC) or by decision by the court (Art.320 CC).

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

a) Spanish Civil Code

• From 14 years old: a last will
• from 16 to get married if the minor is emancipated. In case the minor is not emancipated, the Courts can give permission to marry if the minor is over 14 years of age (Art.48.2 CC). Nevertheless, marriage produces emancipation from the moment of celebration, and thus produces, an extension of the legal capacity
• From 16, having had “almost full” capacity (emancipación) determines that the minor can administrate his/her person and belongings as if he/she had full capacity, but will still need the parents’ consent in order to request a loan, sell and/or mortgage or remortgage a real estate or objects of a very high value (Art.323 CC).

If the minor is married, then he/she will need the consent of the spouse, but if the latter is also a minor, then he/she will also need the consent of the parents or the guardian. (Art.324 CC).

b) Autonomous legislation

b.1.- Aragón (Código de Derecho Foral de Aragón –C.D.F.- adopted by Decreto Legislativo 1/2011, 22 March):

Special situation of the Aragonese over 14 years of age, Articles 23 to 29:

Even though the minor is not emancipated, he/she can perform all acts and contracts with the assistance of either of his/her parents or guardian. In case of failure to provide this assistance, the minor can apply to the Board of relatives or the judge. The appointed administrator will be charge of administering his/her assets, but this task can be performed by the minor him/herself with appropriate assistance.

Assistance: Can take place prior or simultaneous to the act, express or implied, and could be defined as the presence by the assistant and not formulating any kind of opposition. In no case can the assistance be generic, but can be granted for a plurality of acts of the same kind or relating to the same task. In case of conflict of interest with the sole parent or guardian with both of them, the assistance will be borne by the Board of relatives or by the judge. A lack of assistance, when required, determines that the act can be declared null –that action lasts for a maximum time of four years.

Assistance is not needed in the following cases:

– When it can interfere with rights of the personality of the minor, unless there is a risk to the life or physical or mental integrity of the minor. If assistance is against the minor’s will, it can only take place with judicial authorisation.

– To substitute the minor’s own name for his/her Christian equivalent in any of the official languages in Aragon.

– To manage the assets acquired with the minor’s job or industry; those destined to this purpose and their fruits or products; those acquired free of charge when the donor or testator had specifically declared so.

Emancipated minor: Articles 30-33.

Emancipation is acquired by special grant from those exercising parental authority, being the minor is OVER 14 years old and accepts it, in authentic act or appearance before the providing in charge of the Civil Register. It can also be granted by the judge at the request of a minor over fourteen. The same is true when the minor is independent and no longer lives with his/her family. In this case, parental authorisation is sufficient.

Effects: The emancipated minor can govern his/her person and assets as an adult, but needs assistance in the following cases:

-Acts in which parents need judicial authorisation.

-To repudiate liberalities.

– To accept directorships in corporations

b.2.- Cataluña (Second volume, Código Civil de Cataluña, adopted by Law 25/2010, 29 July).

Emancipated minor:

A minor, even emancipated, requires assistance (by those who have parental authority or, where appropriate, the tutor) (Art. 211-13.). In addition to actions for which parents need judicial authorisation (236-27.1), there is an express provision stating that assistance is needed to accept being designated as director of a company.

In case of the impossibility or disagreement of those who must assist the minor, or if they have refused to do so without good cause, the minor may seek judicial authorisation to act by him/herself (Art.211-13)

b.3.- Navarra. Compilación de Derecho civil foral de Navarra, adopted by Law 1/1973, 1 March)

Capacity of the minor:

According to law 50, full capacity is achieved at 18 years of age, when the person is considered an adult.

Minors over 14 years old, of both sexes, who are not emancipated, can accept by themselves any donation for which no obligations are contracted, even those containing restrictions or prohibitions regarding the property the subject of liberality.

Both parents jointly. There are some cases in which only one person has the right of custody:

-If only one of the parents survives, then the surviving one. (Art.154, 156 and 162 CC).

-If the parents live in different places, or one of the guardians has been removed from guardianship, urgent cases, or cases with little relevance as well as in cases of loss of capacity or conflict of interests.

-If there are no parents, the judge will appoint first the persons proposed by the parents in a last will or in an authentic act, and, secondly, the grandparents, children or a sibling. In exceptional cases, the judge can appoint a different person according to the minor’s interest. (214 CC)

The guardian is appointed by the judge.

But the proposal can correspond to the parents in a last will or notarial authentic act (Art. 213 CC).

Any person with interest can notify the prosecutor or the judge about the determining fact of guardianship (Art. 207 CC)

If the parents are the legal representatives, custody belongs to both of them, but there can be exceptions to that general rule, as previously stated.

If legal representation belongs to a third person, the judge usually appoints just one person, but in some cases the judge can appoint different persons, in which case the custody must be exercised jointly.

In some exceptional circumstances the judge can agree that custody can be exercised separately (Art. 218, 219 and 220 CC)

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

The guardian is appointed by the judge

3.2.1 On whose proposal and when is the decision on appointment of custody made?

The guardian is appointed by the judge. But the proposal can correspond to the parents in a last will or notarial authentic act (Art. 213 CC),

Any person with interest can notify the prosecutor or the judge about the determining fact of guardianship (art. 207 CC).

3.2.2 Is the competent authority free in its choice of a new custodian?

The competent authority has to stick to the choice made by the parents. Failing this, the ascendant or sibling appointed by the judge. In exceptional cases, the judge can appoint a different person according to the minor’s interest. (Art.213 and 214 CC).

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

In exceptional cases the custody can belong to two different persons (when there are no parents), with different roles for the custody of the person and his/her estate, or when the judge designates the persons appointed by the parents in a last will (Art.218 CC).

3.3 How and by whom will the right of custody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

There is no difference between married and unmarried couples. If the parents argue about the right of custody, they can determine by themselves how the custody can be organised. If disagreements are long and continued, it is the judge who decides.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No, the right of custody as a whole cannot be transferred to another person. See 4.4.

Specificities of the legislation of the autonomous communities:

1.- Aragon (Code of the Regional Law of Aragon –C.D.F.- adopted by Legislative Decree 1/2011, 22 March):

It traditionally rejects the concept of “custody” as the authority of Roman origin, but regulates the exercise of upbringing and family authority in Articles 63-99 of the CDF.

Duty of upbringing and family authority:
Belongs to both parents. It can also correspond to one of them or to other persons in the absence of both parents. Articles 85-89 regulate the exercise of parental authority by “others”, attributing it by law to the spouse of one parent, to grandparents, preferably to the line that has a better relationship with the child, and elder siblings. The order and content provided by law will rule the exercise of parental authority, unless, in the case of deceased parents, they had provided otherwise in a public document/authentic act. When given to a third party, family authority is automatically assumed by the person in charge of the upbringing and protection of the minor, as soon as this responsibility is given. The exercise of family authority does not extend to the management of property of the child in this latter case.

Scope of family authority:

Includes the duty of upbringing and education, with the additional personal protection mentioned in Article 65 and the representation of the child and administration of his/her assets until he/she turns fourteen (Articles 9, 12 and 94). Once over fourteen, even if not emancipated, the minor can perform by him/herself all kinds of acts and contracts, with assistance, if any, of either of his/her parents in charge of parental authority or, failing that, the tutor. (Article 23).

Appointment of guardian in the absence or incapacity of the parents:

Articles 108 and following distinguish between voluntary and legal guardians and those nominated by the judge in the case of abandonment, similarly to the provisions of the Civil Code. The particularity lies in the possibility for persons determined by Articles 85 and following to assume the exercise of parental authority, in the aforementioned form.

In the case of disagreements regarding the exercise of parental authority:
Either parent can apply to the court, and both together can apply to the Board of Relatives of the child. If the disagreements are repeated, the measures taken by the judge do not have limited effects in time.

Delegation of the exercise of parental authority by means of a power of attorney:
This is not possible. The only possible delegations regard making provisions for the exercise of that authority after the parents’ death, as previously explained.
Or also to exclude parents from the administration of assets belonging to the minor received from a donor or deceased person.

Limitations to legal representation (Articles 14 and following):

A minor under the age of 14 needs prior approval of the Board of Relatives or judge to:
– Reject free liberalities in favour of the minor and to accept modal or onerous donations.
– Disposing of property by immovable assets, companies or financial holdings, shares, movable assets, personal property of extraordinary value or objects of art or precious objects. Disposing of shares or preferential subscription rights for a price that is at least publicly listed in the stock exchange is an exception.
– Disposing of property free of charge, except the usual donations.
-Renounce entitlements/credit claims.
– Give and take money on loan or credit, guarantee, secure, or guarantee with rights in rem.
– Lease real estate, business or financial holdings for a period of over six years, including for this purpose the period during which the lessee is entitled to extend the contract.
– Acquiring membership in corporations that do not limit the liability of persons forming part thereof.
– Compromise or waiver.

Such authorisation is not needed in order to borrow money or credit, even by means of subrogation, in order to finance the acquisition of property by minors, even secure loans on goods purchased.

Article 23. The minor, once he/she is over fourteen, even if not emancipated, can execute by him/herself any kind of acts and contracts, with assistance, if any, from either of his/her parents entitled to the family authority or, failing that, the tutor. The inability to provide assistance will allow the child to apply to the Board of Relatives or the judge.

The minor over fourteen does not need assistance in acts that the law allows him/her to perform by him/herself.

Approval in the case of guardianship (Art.16)

The guardian of the child under fourteen also needs (besides the cases in which the parents need) approval of the Board of Relatives or of the judge (Art.16) to:
• a) Make extraordinary expenses in property.
• b) Present a judicial or arbitration claim on behalf of individuals under guardianship, except in urgent or small claims matters.
• c) Give credit to a third party who is a guarantor for the minor, purchase of property using credits that are enforceable against the ward.
• d) Acquire by onerous title property of the guardian or convey its real part by the same title.

Division of estate or common thing (Art.17)

The division of an estate or common thing does not need prior authorisation but must be approved by the Board of Relatives or the judge when it has been performed on behalf of the minor:
• a) By the tutor/guardian, unless he/she acted under authorisation of the Board of Relatives or the judge.
• b) By the Board of Relatives or public defender. In the case only the Board of Relatives is involved, judicial approval will be needed.
• c) By the single parent holding the family authority with whom there is a conflict of interests if prior permission is not obtained.

The authorisation cannot be generic, but may be given to several acts of the same nature or relating to the same mission (Art.18).

 Acts performed without authorisation or approval when required can be voidable (Art.19):

• a) At the request of the legal representative who was not involved in the act, until the child reaches fourteen.

• b) At the request of the child him/herself, with appropriate assistance when he/she is over fourteen. The action expires after four years, counting since the minor could have performed the act without assistance (due to emancipation or reaching full capacity).

2.- Catalonia (2nd Volume Catalan Civil Code, adopted by Law 25/2010, 29 July):
Parental authority belongs to the parents (Article 236-1.).

3.- Navarre:
Ownership and content of parental rights: Law 64: Belongs to father and mother together, and includes the power to represent the minors in all acts concerning them that they cannot legally do by themselves, unless they relate to some particular acts or assets whose administration does not belong to the parents.

They also hold for the administration and disposition of the minor’s assets; and in the case the minor owned the usufruct, they can give the products of the usufruct the required destination according to the interests and needs of the child and family. Also they are entitled to defend the interests of the children, even those conceived and unborn and even those not conceived.

Parental custody includes the legal power of representation, so it belongs to both parents. Therefore, in the case of joint custody, parents also in principle have joint powers of representation.

Where custody is held by only one parent (death, incapacity, or the custody being declared void in the case of conflict or one guardian has been removed by the judge), the parent has sole rights to represent the child.

In the case of death of the parents, if the custody was declared void by the tribunal, it is the tutor who takes care of the minor and his/her interests.

In the case of guardianship, it is the guardian.

Usually the guardian and representative are the same person. The guardian is appointed by the judge. See question 3.2.1.

The appointment is made by the judge.

But the proposal can correspond to the parents in a last will or notarial authentic act (Art.213 CC).

Any person with interest can notify the prosecutor or the judge about the determining fact of guardianship (Art. 207 CC).

In theory the right of representation belongs to one person, apart from specific cases in which the judge designates the persons appointed by the parents in a last will (Art. 213 and 214 CC) or estimates that the representation should belong to different persons.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in the case of death or loss of legal capacity)?

In this case it is the judge who will appoint the legal representatives. See question 3.2.1.

4.1.1 On whose proposal and when is the decision on appointment of a legal representative made?

The legal representative is appointed by the judge. But the proposal can correspond to the parents in a last will or notarial authentic act (Art.213 CC).

 Any person with interest can notify the prosecutor or the judge about the determining fact of guardianship (Art. 207 CC).

4.1.2 Is the competent authority free in its choice of a new legal representative?

The competent authority has to stick to the choice made by the parents (Art.213 CC). Failing this, the ascendant or sibling appointed by the judge. In exceptional cases, the judge can appoint a different person according to the minor’s interest. (Art.214 CC).

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Guardianship belongs to both parents. If one or both parents are not able to act anymore, it is the legal representative who takes their place, appointed by the judge. That legal representation belongs to one person who cares for both the property and the person, but the judge can divide the two roles across two different people.

In exceptional cases the custody can belong to two different persons (when there are no parents), or when the judge designates the persons appointed by the parents in a last will (Art.218 CC).

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes, Spanish law provides for a range of exceptions, both for parents and guardians.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

The legal representatives (parents or guardians) may not enter into any highly personal legal transaction (such as marriage or registered civil partnership, drafting a will).

The legal representative (parents) needs prior authorisation from the court in the following cases:

1.-To renounce rights to which the child is entitled or sell or dispose of his/her property, commercial or industrial assets, valuable items or shares (except the right to subscribe shares with preference). In these cases the parents will have to justify the urgent need of the measure and get authorisation from the Court, it being deemed necessary to hear the Prosecutor’s criteria as well.

2.-To renounce an inheritance or legacy on behalf of their child. If the judge denies this measure, acceptance of the inheritance will only be possible with the benefit of inventory.

3.-If the child is over 16 there is no need for prior authorisation and he/she gives his/her approval/consent in a public document. Prior authorisation is not needed either when selling shares, provided that the amount is reinvested in assets or reliable values (Art. 166 CC).

The guardian (other than the parents) needs prior authorisation from the court in the following cases (Art. 287 CC):

1. Carry out acts of personal or family significance when the affected person cannot do it on their own, except as provided by law regarding internment, informed consent in the field of health or other special laws. 2.- Sell or mortgage real estate, commercial or industrial establishments, assets or rights of special personal or family significance, movable assets of extraordinary value, precious objects and movable securities not listed in official markets of the person with support measures, give real estate in lease for an initial term that exceeds six years, or enter into contracts or carry out acts that have a dispositive nature and are subject to registration. The sale of the preferential subscription right of shares is excepted. The disposal of the assets mentioned in this paragraph will be carried out by direct sale unless the Court considers that the sale by judicial auction is necessary to better and fully guarantee the rights and interests of its owner.

 3.- Freely dispose of assets or rights of the person with support measures, except those that have little economic relevance and lack special personal or family significance.

4.- Waive rights, as well as compromise or submit to arbitration issues relating to the interests of the person whose guardianship holds, unless they are of little economic relevance. Judicial authorisation will not be required for consumer arbitration.

5.- Accept without benefit of inventory any inheritance or repudiate this or the liberalities.

6.- Make extraordinary expenses in the assets of the person to whom it provides support.

7.- File a lawsuit on behalf of the person to whom they provide support, except in urgent or small-value matters. The judicial authorisation will not be necessary when the person with a disability urges the review of the judicial resolution in which the supports had previously been determined. 8.- Give and take money on loan and provide a guarantee.

9. Enter into life insurance and other similar contracts, when these require investments or contributions of an extraordinary amount. 

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible that both parents have custody but only one has the right of representation in transactions with some property of a minor?

Parental custody includes the legal power of representation. Therefore, in the case of joint custody, parents also in principle have joint powers of representation. Where custody is held by only one parent, the parent has sole rights to represent the child (Art.18 CC).

Irrespective of the joint power of representation, each parent is authorised to solely receive declarations given in respect of minors and may represent the child alone in the case of imminent danger or emergency.

In the case there are special circumstances regarding the minor or his/her assets, it can be deemed appropriate to separate the legal representative of the minor and the legal representative of his/her property, each of whom shall act independently within their competence, although the decisions which concern both must be taken together (Art.218 CC).

Where the parents live apart on a permanent basis despite having joint custody, the parent with whom the child usually resides has the authority to decide by himself/herself in matters of everyday life and may therefore represent the child alone for daily needs; for matters where the arrangement is of substantial significance for the child, their mutual agreement is necessary: they must represent the child together.

The family court may make rulings on custody at any time, particularly if the well-being or property of the child is at risk.

4.2.3 Is it required that all legal representatives conclude the transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

Legal representation belongs to both parents and transactions have to be concluded jointly.

In certain cases (if one parent has died or lost his/her capacity, if there is a conflict of interests or the judge has suspended or removed one parent from his/her role as legal representative, or in the case only one legal representative is appointed by the judge), it belongs to one person.

In this last case, under special circumstances in the person of the minor or his/her assets, and if it is deemed appropriate to separate the legal representative of the person and of property, the judge can appoint one for each role, each of whom shall act independently within their competence, although the decisions which concern both must be taken by all of them together (Art. 218 CC).

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

All of them in the case there is the express or tacit consent of the other. Acts performed by one parent which are deemed current under social use.

The same is admitted regarding acts performed by just one parent under circumstances or situations of urgent need, which are deemed valid.

In the case of disagreement, either parent may apply to the court, who, after hearing the child and if he/she is sufficiently mature and, in any case, if he/she is more than twelve years old, will confer the power to decide to the father or mother.

In the case of repeated disagreements or should there concur any other cause which seriously impedes the exercise of parental authority, it may wholly or partly be attributed to a parent or their duties distributed amongst them. This measure is only effective for a limited period, which can never exceed two years. (Art.156 CC).

When legal representation belongs to one person, the legal representative is the legal administrator of the minor’s estate and is obliged to exercise such administration with due diligence. He/she may perform by him/herself all legal transactions not included in question 4.2.1.

4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor on a joint basis only (e.g. both parents).

Parental authority is exercised jointly by both parents (art.156 CC).

Legal representation belongs to both parents, in the case there is only one, to the surviving one, and in the case there are no parents, to the legal representative appointed by the judge. The legal transactions into which one or both representatives can enter, as the legal representative is the legal administrator of the minor’s estate and is obliged to exercise such administration with due diligence. He/she may perform by him/herself all legal transactions not included in question 4.2.1

 Where there are particular circumstances concerning the minor or his/her assets that justify distinguishing between one guardian for personal questions and another for property questions, each of these guardians will act independently in his/her area of competence, although they will have to make decisions jointly on issues concerning both of them.

Legal representatives have to act jointly in the following cases:

-When guardianship belongs to both parents, it shall be exercised by both together, similar to parental authority.

-When a person is designated as guardian of the children of one’s sibling and it is considered appropriate for the spouse also to exercise the guardianship.

-When the judge appoints as guardians the persons designated by the parents of the minor in a will or notarial act to conduct the guardianship jointly (Art.218 CC).

4.2.3.3 Would there be any difference on the requirement of joint representation in the case the parents have never been married? No / Yes (please specify).

No, the Civil Code makes no distinction in this particular situation.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction is approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

See question 4.2.1. Transactions not included in that point do not require previous judicial authorisation and can be entered into by the legal representative him/herself.

In some exceptional cases, there is no need for previous authorisation by the court and the only thing needed is an approval by the court (see.4.3.2).

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

See question 4.2.1

4.2.4.3 In the case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

If previous authorisation is necessary, then the transaction cannot be performed until it has taken place.

In the case only approval after the transaction is needed, the transaction can take place and once it has taken place it has to be notified to the courts.

In the case the approval required by law is denied, the transaction is void.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court approval).

Parents cannot represent their children if there is a conflict of interest (Article 162.2 of the Civil Code). If there is only one of them, the other will represent them (Article 163 of the Civil Code). If there is no other parent, or the conflict affects them both, a court advocate will be appointed to represent the child in this specific act (Articles 235 and 236 of the Civil Code).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

A testator or donor may stipulate in making the bequest, heir or donation that the parents are not to manage the property bequeathed or donated (Art.164.1 CC), in which the donor’s or testator’s stipulation will be applied nevertheless.

In the case of a succession the persons having the right of custody cannot accept it purely and simply, or renounce it (they need the judge’s permission). In this case, care for the property of the child and therefore power of representation does not extend to this property.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

The parents can grant a power of attorney for specific actions, where the decision as to the elements of the contract has been taken by them (e.g. object, price, the other parties to the contract, the other clauses of the contract), such that the attorney-in-fact acts only for the implementation of a decision taken by the competent person.

Specificities of the legislation of the autonomous communities:
 1.- Aragon (Code of Regional Law of Aragon –C.D.F.-, adopted by Legislative Decree 1/2011, 22 March:

Article 12: The legal representation of the minor under fourteen years belongs to the holders of parental authority, as long as they hold it, and failing that it belongs to the tutor.

Persons entitled to the administration and disposal of property under Article 9 represent the minor under 14 years of age in acts relating thereto: the legislation also has a provision of coexistence of both the real tutor/guardian, and administrator or person specifically designated by the donor or testator to be in charge of administration of the estate the minor received by gift or inheritance (similar to Article 164 and 227 Civil Code).

Conflict of interest. Conflicts of interest between the minor and parents are regulated in a similar way to the Civil Code. Articles 13 and 28 of the CDFA have a specific provision regarding the substitution, by the Board of Relatives or defence lawyer if the conflict exists with both or the sole bearer of the legal representation.

There is also an exclusion of legal representation regarding the goods from which one or both parents have been justly deprived of (disinheritance) or have not been able to inherit because of being declared unworthy as successors; they can also be excluded from the administration of goods acquired by the minor as liberalities or inheritance when the donor or testator has excluded the representation (Art.94 CDFA).

2.- Catalonia (Second Volume Catalan Civil Code, adopted by Law 25/2010, 29 July:
Legal representation is included in the exercise of parental authority.

Joint exercise of parental authority (Article 236-8)
1. Parents exercise together parental authority over children, unless both agreed another exercises it or the laws or judicial authority provide otherwise.

2. For the joint exercise of parental authority, the following rules apply:
• a) acts of administration regarded as common or usual according to social use and regarding third parties acting in good faith, it is assumed that each parent acts with the consent of the other.
• b) acts of extraordinary administration, parents must act jointly or, if they do so individually, with the express consent of the other. Acts of extraordinary administration are the ones that require authorisation from the judge.
• c) acts that must be completed in the case of urgency and in which, according to the social use or family circumstances, are usually completed by just one person, either parent can perform them by him/herself.

Exercise of parental authority with distribution of functions between both parents or individually by one of them with the consent of the other parent (Article 236-9)

1. Parents may agree that one of them has the exercise of parental authority with the consent of the other or, in the case the authority is exercised by both of them, they can distribute the functions between them.

2. Regarding the provisions in paragraph 1, parents can give themselves power of attorney, either general or for specific acts. This power of attorney can be revoked at any time. The general power of attorney should be granted in an authentic act and must be revoked by means of notarial notification.

Exclusive exercise of parental authority (Article 236-10)
Parental authority is exercised exclusively by one parent in cases of impossibility, absence or incapacity of the other parent, unless the judgment that declares incapacitation provides otherwise, and in the event that the judicial authority takes into account the child’s/minor’s interests.

Art 236-12. Should the parental authority be attributed to just one parent or in the case it has been distributed between both of them, or in the case the child lives with just one of the parents, the one who exercises parental authority has the duty to duly inform the other regarding any significant events that can affect childcare and management of his/her assets. This duty of information has to take place on a regular basis, at least every three months.

Art 236-18. The exercise of parental authority involves the legal representation of the child. Acts excluded from legal representation are the ones related to personality rights, related to assets or acts that, according to social practice, are deemed as common regarding the age of the children, those in which a conflict of interest exists between the child and his/her parents and assets excluded from the parents’ administration.

Limits to legal representation:

Art 236-27. Acts requiring judicial authorisation: The regulation is very specific and it is done in a similar way to the acts in which the Civil Code requires the guardian to request judicial authorisation

1. The parents or, where appropriate, the special administrator, regarding assets or rights belonging to children, require judicial authorisation to perform the following acts:
• a) Sell real estate, commercial establishments, intellectual property rights, or other assets of extraordinary value, as well as mortgage them or subrogate in a pre-existing mortgage, except in the case the mortgage, levy or subrogation’s aim is to finance the acquisition of said asset.
• b) Dispose of real property rights included under letter a) or waive them, with the exception of redemptions of censuses.
• c) Dispose of or mortgage (levy) securities, stocks or shares. However, no authorisation is required to dispose, at least for the listed price, publicly traded shares or to sell the pre-emptive rights.
• d) Waive credits.
• e) To renounce donations (liberalities), legacies and bequests; accept modal or onerous legacies and liberalities.
• f) Give and borrow money on loan or credit, unless the aim of the loan or credit is to finance the acquisition of an asset.
• g) Grant real estate on lease for a term of more than fifteen years.
• h) Endorse, loan guarantee or warranty obligations of others.
• i) Become a shareholder of companies that do not limit the liability of their members, and incorporate, dissolve, merge or split these companies.
• j) Waive, agree to the demand, withdraw/abandon a demand or compromise on issues relating to the property or rights included in this paragraph.

2.- Judicial authorisation is not necessary regarding assets acquired by the minor as a gift (liberalities) or by inheritance title if the donor or the deceased have expressly excluded it.

Art 236-30. Judicial authorisation can be substituted by the consent of the two closest relatives of the child, as established in Article 424-6.1.a), or simply with the consent of the child him/herself in the case he/she is over 16 years of age.

Art 236-31. Failure to request judicial authorisation determines the act can be voidable. The action to declare the act as void lasts for four years, counting from the time the children have reached adult age, or emancipation or judicial rehabilitation of capacity have taken place.

Conflict of interest. Conflicts of interest between the child and parents are regulated in a similar way to the Civil Code.

There is also an exclusion of legal representation regarding the goods from which one or both parents have been justly deprived of (disinheritance) or have not been able to inherit because of being declared unworthy as successors; they can also be excluded from the administration of goods acquired by the minor as liberalities or inheritance when the donor or testator has excluded the representation.

As a specialty, there is a specific regulation containing procedures to protect children and vulnerable people, as the assistance relationship (Arts. 226-1 to 7) or the protected heritage/estate (Arts. 227-1 to 9).

3.- Navarre:
Exercise (Act 67): Corresponds to both parents and can exercise it as they agreed, but in the absence of such agreement, both must act together. In the case of discrepancy or no agreement is achieved, the issue will be resolved by the judge at the request of any of them.

Disposal of property (Act 66): Judicial approval is not deemed necessary for:
-cancellation of mortgage or other guarantee once the secured credit guarantee has been paid.
-for the sale when exercising a legal or voluntary right of first offer.
-or for any compulsory disposal acts.
Parents can accept gifts/liberalities on behalf of their children, but need judicial authorisation to refuse them.

Emancipated minor (Act 48): The legal assistance for those acts that the emancipated minor cannot perform by him/herself (equivalent to the Civil Code) will be provided by either of their parents or the guardian.

5.1 Does the law provide some kind of document, which gives evidence of the right of custody and/or representation?

There is no such document for the legal representatives (parents) apart from the “libro de familia” (Family book) which states who the parents are, the children and date of birth of each one.

A birth certificate produced by the Civil Register gives evidence of filiation, as well as the minor’s passport in which figures the names of the parents as well as the parents’ passport, in this last case only if the children’s names are stated.

If the guardian has been appointed by the Courts, then it is the Court’s decision which gives evidence of the right of custody and representation, and states which acts the guardian can enter into by him/herself.

The legally appointed guardian obtains a certificate of appointment appropriate to prove his or her powers, but this provides no substantive effects or assurance of good faith.

5.2 Is there any other kind of document, proving the right of custody and/or representation?

The birth certificate can provide evidence of who the child’s parents are. The birth certificate does not, however, confer custody or power of representation and therefore is not used in practice.

The consent/permission/authorisation is given by both parents, or by the one living with the child or by the guardian or institution that has the guardianship. There is no regulation on this last point, so usually it depends on many cases, such as the age of the minor, country of destination, how long the trip lasts, etc.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

In case it is a person (parents or guardian) the consent/permission/authorisation has to be in written form, in two different ways:

1. Authentic notarial act.
2. Private document, signed before the Spanish Civil Guard’s Officer, by means of a form that can be downloaded here:

https://www.guardiacivil.es/es/servicios/permiso_salida_menores_extranjero/index.html

1. If the minor is legally represented by a public institution, by a certificate issued by that particular institution.

Part 1: Protective measures for adults with diminished capacity

After Law 8/2021, of 2nd June 2021, modifying civil and procedural legislation to assist people with disabilities in the exercise of their capacity entered into force, the Spanish legal system has adapted to the New York UN Convention of13th December 2006, according to which, people with disabilities have legal capacity on equal terms with others in all aspects of life. Amongst others, the Notarial Law, the Civil Code, the Mortgage Law, the Civil Procedure Law, the Property Protection Law for people with disabilities, the Civil Registry Law, the Voluntary Jurisdiction Law and the Commercial Code have been amended.

The deepest change involves the modification of the Civil Code, based on respect for the wishes and preferences of the person with disabilities.

The concept of incapacity disappears and is replaced by support measures to help the citizen exercise his/her capacity. The Spanish legal system provides that the protection of the person and/or property of adults with reduced capacity is only exercised by:

– First, the persons appointed by those who require support in order to exercise their legal capacity, by means of a notarial public document (Article 255 of the Civil Code). This may establish the person or persons assisting them, the manner of action, the fields and activities in which they will act, and the safeguards decided by the interested party him/herself. Support may comprise assistance by means of advice and accompaniment; the requirement that the assistant agree to the specific act, or the powers of representation (ordinary or preventive powers of attorney, when taking into account the situation of disability).

In the case of support measures, it may also establish the regime of action, the scope of the powers of the person or persons who have to provide support, or the form of exercise of the support, which will be provided in accordance with the provisions of article 249. Likewise, it may provide for the control measures or bodies it deems appropriate, the necessary safeguards to avoid abuse, conflict of interest or undue influence, and the mechanisms and deadlines for reviewing support measures, in order to guarantee respect for its wishes and preferences. The authorising Notary will communicate ex officio and without delay the public document containing the support measures to the Civil Registry for its record in the grantor's individual registry.

– Secondly, de facto guardianship, the non-formalised situation in which one person is responsible for assisting another. The current regulations (Article 264 of the Civil Code) establish that this will have support functions; representation in the application for economic aid, and in matters of limited economic, personal or family significance. In order to represent them in other matters, the guardian will need court authorisation, which may also establish safeguards to protect the person who requires guardianship.

– Thirdly, and only in those cases where there are no sufficient de facto voluntary guardianship measures (Articles 255 and 268 of the Civil Code), the judicial authority will appoint a curator. The purpose of the curator will be to assist in those cases decided by the judge. On an exceptional basis, they may be assigned representative functions in which they will act in the name of the person with disabilities (Articles 268 to 294 of the Civil Code). Court authorisation will, in turn, be needed in the most significant cases listed in Article 287 of the Civil Code.

The overall state of total incapacity no longer exists. Since assistance is provided in matters where this has been established (voluntary or judicial measures) or in which it is being exercised (de facto guardianship), all three may coexist, the preference at all times, in any given case, being for voluntary, de facto and court guardianship. Court measures may potentially be established to supplement the above, if necessary. Ultimately, the judicial authority can establish safeguards for voluntary measures or de facto guardianship in the event of misconduct (Articles 249 and 267 of the Civil Code).

When a judicial decision is pending and when measures are required for the administration of the person’s assets in a loss of capacity, it is possible to appoint a defence counsel on an interim basis (“defensor judicial”). Its role will cease with the constitution of guardianship or curatorship. The defence counsel must also be appointed when there is a conflict of interest between the legal representative and the person with reduced capacity in relation to an act (article299 of the Civil Code)

Part 2: The possibilities of anticipating a future loss of capacity

A. Voluntary measures.

Spanish Law 8/2021, of 2nd June 2021, modifying civil and procedural legislation to assist people with disabilities in the exercise of their capacity entered into force, adapting the Spanish legal system to the New York UN Convention of 13th December 2006, according to which, people with disabilities have legal capacity on equal terms with others in all aspects of life. Amongst others, the Notarial Law, the Civil Code, the Mortgage Law, the Civil Procedure Law, the Property Protection Law for people with disabilities, the Civil Registry Law, the Voluntary Jurisdiction Law and the Commercial Code have been amended.

The deepest change involves the modification of the Civil Code, based on respect for the wishes and preferences of the person with disabilities. The Spanish legal system provides that the protection of the person and/or property of adults with reduced capacity is exercised just by him/herself by means of a notarial document of voluntary measures, which may be of assistance or representation. The latter will be exercised by means of powers of attorney.

Voluntary measures may be established for an existing disability or in the event that support is needed to exercise legal capacity in the future. Within such measures, those involving representation include powers of attorney.

 Ordinary powers of attorney can be revoked if court measures with powers of representation are adopted, with two exceptions (in which case they are called preventive powers):

– In the first, the principal provides that the power of attorney will not be revoked even if a curatorship with powers of representation is established. In this case, the power of attorney takes effect from the moment it is granted, and remains in effect even if such a court measure is established.

– In the second case, it is established that the power of attorney will only take effect in the event of a future need for support on the part of the principal. In this case, the power of attorney does not take effect from the moment when it is granted, but when the situation generating the need for support occurs. The moment when it is to be applied will be established according to what the principal set forth in the power of attorney itself. A notarial document, corroborated by two experts, may be used to justify this.

Enduring powers of attorney must be registered in the Civil Register.

Only in the absence or insufficiency of these voluntary measures, and in the absence of de facto guardianship that implies sufficient support, may the judicial authority adopt other supplementary or complementary ones.

B. Any person with sufficient capacity to act may appear before a notary to propose for the future the person whom he or she wishes to have appointed by the judge as his assistant or legal representative when he or she is in a situation of need for support and curatorship, and to establish the measures or criteria to be taken into account with regard to his/her person or his/her property (“curatorship appointment”) and establish support measures.

C. Advance decisions on medical treatment (“prior instructions” or “advance wills”) are used to provide instructions or to appoint the trusted person to give them at the appropriate time in the event that a person is no longer able to express his or her willingness to accept or refuse medical treatment, for example as a result of an accident or illness.

The prior instructions document may contain the following measures:

• Provisions regarding medical treatment.
• Provisions regarding organ transplantation.
• Provisions regarding the process of dying (e.g. the desire to die at home or to be accompanied by certain persons)
• Possibility of applying euthanasia.

Euthanasia has been regulated in Spain by Law 3/2021, of 24 March. This law provides for a process of deliberation after the patient requests that it be applied. In the event that they do not have capacity, the provisions of their document of advance will or prior instructions will be applied directly.