With Informative Circular 7/2020 (of November 7, 2020 on notarial action in those documents that affect the function of guardianship of minors), the General Association of Notaries defines and clarifies the role of the notary in the protection of the minor. To this end, it establishes when the granting of a deed must be communicated to the Prosecutor's Office or to the corresponding Public Entity, and the specific guidelines for different deeds.

OBJECTIVES OF THE CIRCULAR

This circular from the General Council of Notaries intends to ensure that notarial action, in all those acts or businesses that directly or indirectly affect the guard function exercised or intended to be exercised by the holders of the parental authority a series of requirements and objectives are met.

  1. Be as uniform and effective as possible, adapting in any case the will expressed by the parents to the legal system
  2. Adjusted to the new approach in the construction of the building of the rights of children and adolescents 
  3. Coordinated with the Prosecutor's Office and the corresponding public entity for the protection of minors in the event that any possible situation of lack of protection due to risk or helplessness is appreciated. 

CONTROL IN AUTHORIZATIONS-POWER

In recent years, greater flexibility has been given in the exercise of Parental Power, allowing the notarial granting of power-of-authorizations. In these power-of-authorizations, the Notary must ensure the interest of the minor. The CGdN contemplates different assumptions.

A) Authorization or travel permit outside the national territory for minors. 

  • Required only for minors Spanish residents in Spain. Foreign resident minors must go to their consular authority.
  • It must be done in a public deed, as it affects a uniquely qualified third party (minor) without being excused for being an authorization. A private document cannot be legitimized, it must be a public deed or Act 207
  • CONSENT: both parents or by one of them stating that they have the consent of the other parent. If it is for a change of address, it is an act of extraordinary exercise of parental authority and the consent of both parents will be required.  
  • REQUIREMENTS: Reliably prove the affiliation and clearly and precisely indicate the destination, date of departure and return or periods of entry and exit if the trips are frequent for work, sports or academic reasons, as well as the person who is doing charge of the minor (family if it is a leisure trip or teacher-tutor if it is a study trip).
  • Generic TERM of 30 days of validity for the permit or authorization. 
  • ELECTRONIC FORMAT: through the procedure notification to third parties, so it can be taught in a more comfortable way and, in case of revocation of the authorization, the Security Bodies are immediately aware of said circumstance.
  • It is important to verify that the exercise of parental authority is exercised in the interest of the minor. Especially when it comes to the authorization of girls to travel to a country that allows child marriage (For example: Niger, Central African Republic, Chad, Mali, Burkina Faso, Guinea, South Sudan and Mozambique, Bangladesh, India, Brazil, …), the ministry must be denied and the Prosecutor's Office and the corresponding public protection entity must be informed.

B) Deed of delegation of guardianship between holders of parental authority. 

  • PURPOSE: to document consent

C) Deed of special power conferred by the holders of parental authority in favor of a family member for a specific act. 

  • The ability to act in a specific act is given to a family member.
  • The people with the capacity to grant the power will depend on the power that is granted.
    • Ordinary power of attorney: The appearance of any of them is sufficient if its purpose is an act of ordinary exercise.
    • Exceptional power: For those exceptional acts in which the exercise of parental authority must be joint, the granting of power must also be. This is the case of the special power to obtain or issue a passport, for which the consent of all those who have the exercise of parental authority is required.
  • If the power of attorney is broad and confers general powers that last over time and it can be understood that the parents are unable to perform custody, a power of attorney should not be granted but a help writing o guard extension.

D) Deed of assistance or extension of custody of a minor granted by the holders of parental authority and the guardian relative 

  • It can be granted for all those minors residing in Spain (they may not be Spanish)
  • GRANTING: holders of parental authority (both must grant it, as it is an act of extraordinary exercise). The presence of the minor is not mandatory, but the parents can request it

There are a series of measures that must be observed in the interest of the minor:

  • Investigate the specific circumstances and causes. It must be a justified measure. Especially when the guardian is not familiar.
    1. If the unprotected situation is evident, the writing must be denied
    2. The holders of parental authority can be informed of the possibility that a Public Entity assumes the custody of the minor (art 172 CC)
  • It has a temporary limitation, never a period of more than two years. During this period it is revocable.
  • Include in the deed: the relationship between the minor and the guardian (previously accredited), the statement of acceptance and the generic duties and specific acts. recommendable that the guardian be qualified as the authentic legal representative of the minor
  • It is only necessary to notify the Public Prosecutor's Office if:
    1. Only one of the parents exercises parental authority (different from only one having custody) without adequate accreditation
    2. non-family guardian
    3. The same document referred to the same minor has been granted previously
    4. Situations of humanitarian crisis and massive population displacements
    5. In the opinion of the notary, when motivated by the circumstances and causes.
  • Warn the translator of his responsibility in case of lack of concordance and/or will

PERFORMANCE OF THE NOTARY IN VARIOUS DEEDS

The notary collaborates in the protection of minors by notifying the Public Prosecutor's Office or public entities, and authorizing the following instruments:

A) Deed of preventive appointment of guardian by the holder(s) of parental authority

In those documents in which a guardian is appointed (will or notarial public document), it is advisable to appoint a provisional guardian in the same deed, preventively. This provisional guardian may be the guardian himself and his actions must ensure that the needs of the minor will be covered until the judicial authority appoints a guardian. This forecast makes it possible to avoid a guard gap.

B) Certificate of custody of a non-emancipated minor

It is recorded that a person has assumed guardianship functions without having a specific duty. It is not a good or bad document in itself, but it must be notified (to the prosecution or corresponding public entities) in specific situations.

  • The certificate of record is not a legitimizing title, but it allows the factual situation to be justified or taken into account when assessing the advisability of establishing measures.
  • The action of the notary is the factual verification of the statements of the applicant, witnesses, and corresponding documentary evidence.
  • It may be convenient to request the non-existence of criminal record y crimes of a sexual nature of the keeper.
  • Requesters are advised to communicate the content to the Prosecutor's Office or to the public entity

C) Act of notoriety for the accreditation of the minimum coexistence of three years as a criterion of suitability for adoption and foster care

In some Autonomous Communities it is requested as a requirement for adoption, however Catalonia is not one of them.

D) Records of article 211.3 of the Immigration Regulations to prove the impossibility of obtaining documentation in the corresponding diplomatic mission

It is convenient to carry out the diligence in person at a diplomatic mission, accompanying the undocumented person, witnessing the request, and offering the delivery of the identity card to make the right to reply effective. Need to request authorization to enter a diplomatic mission

If you want more information or prepare any of these documents, do not hesitate to contact us at the Notary Bosch-Bages.