Question: My wife has just recently been diagnosed with Alzheimer decease. It is at an early stage, but I would like to know if their is anything we should be doing from a legal point of view while she is still of able mind.
Answer:Being diagnosed with dementia or Alzheimer is a terrifying experience and talking to a solicitor about what things can be done in preparation for the desease getting worse can sometimes feel like accepting that the inevitable will happen. .
The truth though is that you can decide for yourself exactly who and how things will be taken care of in the future, so facing things now will permit you to make sure that if the desease does progress you will have left things well organised for your family and yourself.
Obviously in many cases the documents will not be needed for years to come and in some cases will never be used , but we strongly recommend dealing with things as soon as possible and if the documents are never needed perfect.
The only advantage about this illness is that unlike hart attacks, fatal car accidents etc. it gives the person affected time to put his affairs in order.
Every family is different and face these situations differently so there is no single solution that fits all cases so a family reunion with your solicitor is a good idea. If your family solicitor does not have experience with these matters ask him to recommend a firm with a Law for the elderly department and failing this normally a firm specialised in estate planning will be well equipped to deal with this.
There are many options and possibilities that depending on your circumstances your solicitor will talk about, but in all cases you need to address two very important documents:
1.Enduring power of attorney:
In this case we would recommend that your wife issues you with a Spanish enduring power of attorney. (this is quick, easy and even though it could vary depending on the solicitor it will not cost you more than 400 euro). We have a booklet on the different types of powers of attorney you can sign in these circumstances. Simply request it by e-mail and we will post or e-mail it to you free of charge.
The power of attorney is necessary because if it is not signed, the moment she is no longer of able mind you will not be able to handle her accounts, sell you’re jointly owned property etc..
There are different types that allow different levels of security. For example you can make the power of attorney to one single person (for example husband), or to a couple of people jointly (for example husband and child ) so that both have to sign any disposal of assets etc.
If you do not sign it while you are of able mind in Spain we have to go to an incapacitation procedure which is long, expensive and will result in a judge deciding who can do do what and how, which can result very impractical when selling a property etc. From experience I can confirm that things get very complicated.
2. Spanish will. (it may need to be revised and you need to do it now)
Make sure her will is in good order as no changes can be made after she is not of able mind.
The one thing she cannot issue you with power of attorney for is for signing a new will , which is why we would recommend that you take a good look at her will to make sure that it is correct as she will not be able to modify it in any way the moments she no longer understands what she is doing. Make sure that it complies with the New Directive 650/2012 , that the beneficiaries are those she wishes , that you are comfortable with the named executor etc. Remember when she is no longer of able mind the will can not be changed under any circumstance .
I would look at your own will also, as if you have left everything to your wife you may wish to change this in favour of perhaps one of your children.
In the u.k. I would also recommend that you put things in motion to obtain a full enduring power of attorney. The forms can be downloaded from the internet and you can start things off by post. In the u.k. this can also be done after she is no longer of able mind , but their is no harm in doing it beforehand.
In addition to the above , when the desease is severe and the affected person is no longer in use of his/her faculties:
We would recommend that if your spouse is no longer of able mind you contemplate the possibility of removing him/her as beneficiary of your own will and instead name as beneficiary the person that will take care of his/her wellbeing if you decease before him /her. (for example children)
This is painful but important because if the beneficiary of an estate is somebody with alzheimer it will cause all sorts of legal problems in Spain delaying access to funds by the family which may be required for care etc.
We would strongly recommend a visit to your solicitor to discuss your situation in particular and to address at least the matters explained above. An honest and upfront meeting of the family with a solicitor at an early stage of the illness is a very good idea.
Michael Davies.
Abogado.
Member 1748 of Almeria Law Society.
Member 67228 of Madrid Law Society.
