Andorra
Vulnerable Persons in Andorra
Adults
1 - Does your legal system provide for lasting powers of attorney for persons who wish to nominate someone close to them as their guardian in case of loss of legal capacity owing to an accident or illness?
Yes. Under article 27.1 of Law 15/2004, known as the Loss of Capacity and Guardianship Authorities Act, of 3rd November 2004, and the amendments introduced by the Decree dated 26th February 2014, published in the Andorran Official Journal of 5th March 2014, no. 19, year 26, www.bopa.ad (all subsequent references to given articles are articles of this Law, unless otherwise specified), any adult can nominate, by means of an authentic act, a guardian, his/her substitutes, fix their remuneration or exclude this or that person, in view of a future declaration of incapacity.
- What is covered by the lasting power of attorney (administration of assets, custody rights, etc.)?
The lasting power of attorney covers the administration of assets, right of guardianship and other matters tied to the legal capacity of persons.
- Who may be appointed as legal representatives?
Under Andorran law, any person having full legal capacity and all civil rights may be appointed as legal representative within the framework of this lasting power of attorney, unless previously deprived of the exercise of the right of custody or guardianship or has been convicted of a crime.
- Must all representatives be approved, for example by a court?
Yes, the legal representative (custodian-guardian) will be subject to supervision.
First of all, at the start of the assignment, he/she/they has/have to draw up for the court a complete inventory of the assets of the incapacitated person, as well as any other asset or right acquired subsequently, during his/her custodianship/guardianship, within sixty (60) days at the most from the date of acceptance (art. 35.1).
The custodian(s)/guardian(s) is/are required to submit the management accounts to the court at least once a year (art. 37.1).
The custodian(s) need(s) authorisation from the court to:
- Dispose of or rent the assets of the incapacitated person.
- Renounce successions.
- Borrow or lend money.
- Initiate legal proceedings (art. 42)
- May authorised representatives delegate authority to third parties?
The legal representative cannot be substituted by any other person within the framework of his/her appointment.
- Under what conditions may lasting powers of attorney replace official guardianship?
The judicial protection measures of vulnerable persons always prevail over lasting powers of attorney made on a voluntary basis.
So, the court may revoke or modify the lasting power of attorney, if it deems that this decision is beneficial to the incapacitated person.
- Do powers of attorney have any legal effects before the loss of capacity occurs? Do they have effects after death?
The lasting power of attorney may have effects prior to the loss of capacity, in the form of a simple power of attorney, if this is the will of the person concerned, but it can never have effects after death, as this is reserved to the last will.
- In what form must the power of attorney be drawn up?
The lasting power of attorney must be formalised by means of a notarised authentic act, within the framework of a will, a codicil or a specific ad hoc instrument establishing the lasting power of attorney (articles 27 and 28).
h) Must/can lasting powers of attorney be recorded in a register?
There is no register of lasting powers of attorney in the Principality of Andorra.
2 - Does your legal system provide for an advance decision on medical treatment for persons who, as a result of an accident or illness, are no longer able to express their wishes with regard to undergoing or refusing medical treatment?
The Andorran legal system does not provide for advance decisions on these matters. However, for this very reason, according to the principle of private law whatever is not forbidden is allowed; persons wishing to make these decisions in advance can always do so, especially in an official form (notarised acts).
Normally, medical and healthcare teams in Andorra have no difficulties with these advance decisions, especially if made in an official form (notarised).
3 - Does your legal system provide for the right to request that a trusted person be named as guardian in case of future incapacity?
Yes. As we can designate someone to be our custodian, we can also designate someone as our guardian.
In Andorra, the difference between custodian and guardian is that custody applies to minors or persons with severe incapacity, while guardianship applies to persons aged over 16 (or 14 if already married) or adults with less severe incapacity, but only to supplement their capacity.
a) Is the request for a trusted guardian binding on the court/authority?
This request is, in principle, binding on the court/authority.
However, the spouse or registered partner, ascendants, descendants and the Public Prosecutor may take legal action against designation or exclusion, if they are able to prove a change in existing circumstances, since appointment or exclusion (art. 27.2).
Although the parents may have been appointed in the interest of the minor child (art. 28.1), the judicial authority may object to their appointment, if it deems there are sufficient reasons for their exclusion (art. 28.3).
b) Does such a request require official approval?
As mentioned earlier, the request is, in principle, binding on the court/authority, excluding the foregoing exceptions.
c) Who may be appointed as guardian? May more than one person be named as legal guardian?
d) May more than one person be named responsible for the administration of assets and handling custody rights?
As representatives, you can name as many people as you like. The same applies to custodians/guardians, if they are persons. If they are legal entities, the custodianship/guardianship is reserved to a single legal entity (art. 25.1). The administrator of the assets has to be a single person (art. 29.1)
- In what form must the request be drawn up?
The notarised power of attorney does not require a particular form, aside from being notarised. Designations made by parents in favour of their minor children may also be formalised in a will or codicil.
- Must/can such requests be recorded in a register?
In Andorra, there is no register of notarised lasting powers of attorney.
4 - Which authority has international, territorial and material jurisdiction to appoint legal guardians?
If you have not appointed a custodian/guardian by means of a public act, it is the judicial authority (the judge, known as “Batlle” in Andorra) that will designate one.
5 - Is it usual practice to appoint several guardians, to deal with different matters (custody rights, administration of assets, etc.)?
Normally, the same person(s) is/are in charge of all the aspects of life of the incapacitated person, but a person who gives or bequeaths assets freely, either inter vivos or by will, is entitled to appoint an administrator of these assets and set out his/her powers (art. 29 of the same Law).
6 - To what formal and material restrictions are legal guardians subject? Specifically, must they be officially approved? Must they have authorization from a court or authority to carry out certain legal acts?
Of course, the legal guardian is subject to supervision. He/she is required to draw up an inventory of the incapacitated person’s assets, in the presence of and involving the Public Prosecutor and the persons appointed by the court to this end (art. 35). Every year, at least, the guardian has to appear in court and report on his/her management of the assets (art. 37). To dispose of the incapacitated person’s assets and obtain bank credits or loans for him/her, the guardian has to receive the court’s authorisation, failing which such transactions shall be considered void (art. 43).
7 - Under the conflict-of-law rules in force, what substantive law is applicable to:
- lasting powers of attorney?
- advance decisions to refuse treatment?
- requests made with regard to the guardian and/or circumstances of a guardianship?
No, Andorra has not signed the Hague Convention of 13 January 2000 on the International Protection of Adults.
Under what condition are the following foreign documents recognised in your Member State?
a) lasting powers of attorney
b) advance decisions to refuse treatment
c) notarised powers of attorney.
In principle, any document complying with Andorran legislation is accepted in Andorra, even if drafted or signed abroad. All that is needed is an international legalisation apostille.
Minors
1 - Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?
No, Andorra has not yet signed or ratified this Convention, but has signed other conventions on minors, such as the one on Child abductions.
- Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?
The law applicable to matters concerning custody and legal representation of minors is contained in the second section of the Act on Adoption and other forms of protection of minors, dated 21st March 1996 (www.bopa.ad, no. 29, year 8, of 24th April 1996).
This law has as its principle:
“Giving absolute priority to the minor’s interest, beyond any other person or institution concerned” and “strengthening the judicial and administrative guarantees and inspections to improve the protection of minors”.
- Which authority has international and territorial jurisdiction concerning questions of custody?
In case of family issues concerning a minor, it is the Social Services department of the Government that has the duty of protecting and receiving the minor, always under the supervision of the court and the Public Prosecutor.
- Which authority has international and territorial jurisdiction concerning questions of representation?
The authority having international and territorial jurisdiction regarding representation in Andorra is the court that checks and validates all forms of representation.
2 - Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?
A person is considered a minor until age 18 (art. 27 of the Act on Adoption and other forms of protection of minors, dated 21st March 1996). There are therefore different levels in minority, according to age.
First of all, persons aged over sixteen (16) may be considered “emancipated” based on an official statement of the parents made by means of a notarised act or before a Civil Registrar or as of age 14 following marriage.
Emancipated minors may perform transactions as if they were adults, excluding the following cases:
- Dispose of or rent real estate, commercial assets or assets of great value.
- Renounce successions.
- Borrow or lend money.
- Initiate legal proceedings (art. 42, Law on incapacity, by analogy)
In these cases, the authorisation of the court is replaced by parental authorisation.
- Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?
- Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?
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.
In Andorra, anyone can write a will as of age 14, without requiring authorisation (art. 95 of the Law on successions following death).
In the case of marriage, anyone aged over 16 can marry.
Those aged between 14 and 16 need to request the authorisation of the court that examines whether there are valid reasons; however, the court has to hear the Public Prosecutor and the parents too (art. 19 of the Marriage Act, dated 30th June 1995, www.bopa.ad, dated 2nd August 1995).
3 - Who has the general right of custody of a minor?
Parents generally have the right of custody of a minor (art. 27 of the Protection of Minors Act)
3.1 What is the scope of the right of custody?
Protecting the health, safety and morality of a minor. Parents have the right to look after, oversee, maintain and educate their children. They have rights of legal representation of their minor children and administer their assets (art. 27.1 of the Protection of Minors Act).
- 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)?
3.2.1 On whose proposal and when is the decision on appointment of custody made?
3.2.2 Is the competent authority free in its choice of a new custodian?
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)?
If the parents/custodians are affected by a general loss of capacity and have not appointed any custodians, it is the judicial authority that designates them, always in the interest of the minor, with the interdiction of any arbitrary decisions and with the supervision of and taxation by the Public Prosecutor.
As to appointing several persons, what I described previously regarding incapacitated adults applies.
- 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?
No, there is absolutely no difference between married and unmarried couples.
If one of the parents names a custodian and the other appoints another, it is the designation of the last parent alive or the last to have the right of custody that is valid (art. 28.2).
3.4 May the right of custody be transferred to another person by means of a power of attorney?
3.4.1 Is the consent of all custodians to the transfer mandatory?
3.4.2 Are there any restrictions to this type of power of attorney (for example the right of custody may not be transferred in its entirety?
- What are the formal requirements for this type of power of attorney?
Any delegation or partial transfer of the right of custody has to be established by means of a court decision, always to the benefit of the minor (art. 36.1 of the Protection of Minors Act).
4 - Who has the general right of legal representation of a minor?
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 case of death or loss of legal capacity)?
If the parents/custodians are affected by general loss of capacity and have not appointed any custodians, it is the judicial authority that designates them, always in the interest of the minor, with the interdiction of any arbitrary decisions and under the supervision of the Public Prosecutor.
4.1.1 On whose proposal and when the decision on appointment of a legal representative is made?
Anyone who is aware of the need to appoint a legal representative for a minor has the duty of communicating this need to the judicial authority or the Prosecutor especially if they are authorities or members of the minor’s family (art. 32 of the Custody Act).
- Is the competent authority free in its choice of a new legal representative?
Yes, the competent authority is free to choose a new legal representative, with the interdiction of any arbitrary decisions and always in the interest of the minor.
4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?
Generally, the same person(s) is (are) in charge of all aspects of the incapacitated person’s life, but if the latter donates assets of his/her estate whilst alive or bequeaths them by will, it is possible to name a person to administer these assets and establish his/her powers (art. 29 of the Custody Act).
- Are there any restrictions / extensions for the legal representative(s)?
The custodian(s)/guardian(s) has (have) to submit to the court the accounts relating to the management of the assets at least once a year (art. 37.1).
The custodian(s) needs/need court authorisation in order to:
- Dispose of or rent the incapacitated person’s assets.
- Renounce successions.
- Borrow or lend money.
- Initiate legal proceedings (art. 42).
- 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 representative, like the parents, cannot represent the minor in areas where representation is not possible, such as drawing up a will or getting married.
- 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 for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?
- Is it required that all legal representatives conclude 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)?
- 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).
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 only jointly (e.g. both parents).
In Andorra, there is a clear connection between the right of custody and the right of representation of a minor. These two legal institutions are identical and the minor’s legal representative plays the same role as the parents, in those cases where the latter are unable to act (following their death or due to any other circumstance).
The right of custody belongs to both parents jointly (art. 27.1 of the Protection of Minors Act). Thus, for day-to-day matters, it is generally admitted that only of the two parents acts. However, if the assets involved are of value, both parents have to be involved mandatorily.
To renounce succession or dispose of immovable or commercial property or assets of great value etc., the agreement of both parents is mandatory.
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?
Not at all. Whether the parents are married or not, makes no difference.
4.2.4 Other restrictions for legal representatives:
4.2.4.1 Is it necessary that the transaction to be 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?
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.
The legal representatives require court authorisation in order to:
- Dispose of or rent the incapacitated person’s assets.
- Renounce successions.
- Borrow or lend money.
- Initiate legal proceedings (art. 42).
4.2.4.3 In 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?
There is no difference if the approval is given before or after, but any transaction made without this authorisation, either before or after, is essentially null and void (art. 43 Law on Incapacity).
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)?
According to article 23 of the Incapacity Act, all legal representatives of minors cannot enter into agreements to transfer the minors’ assets or rights to representatives or vice-versa, even if this is done indirectly or through a third party or family member.
- Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?
In their wills, parents can, following death, also dispose of the assets of their children aged below 14, but other legal representatives cannot.
However, to renounce succession, court authorisation is always needed.
- May the right of representation be transferred to another person by means of a power of attorney?
Legal representatives have to exercise representation personally (art. 17 of the Incapacity Act).
However, the representative of a minor can give a power of attorney to a third party to the benefit of the minor for specific reasons.
- Is the consent of all legal representatives to the transfer mandatory?
This depends on the act of designation of legal representatives. This act clearly establishes how representatives will act, either all together or jointly and severally.
4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or cannot be transferred in regard to certain transactions)?
The act appointing legal representatives may also establish restrictions or conditions to the way legal representatives act.
- What are the formal requirements for this type of power of attorney?
This type of power attorney has to assure its legality and authenticity. A notarised act always assures this fully.
5-How can the custodian / representative prove his/her right?
- Does the law provide some kind of document that gives evidence of the right of custody and/or representation?
- Is there any other kind of document, that proves the right of custody and/or representation?
The custodian or legal representative can prove his/her rights – and duties - by means of either a Civil Registry certificate or a copy of the designation act.
6 -According to the national law, who is responsible for giving consent/permission/authorization for a minor child to travel abroad, in the event both parents are not travelling with the child(e.g. one parent, both parents, the guardian, institution, please specify)?
6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?
The parents or custodian, as the case may be, are responsible for authorising a minor to travel abroad. For example, they can sign this authorisation before a notary.
However, the official notarised form is not mandatory and legalisation may be sufficient.