When do you need a power of attorney in Ecuador?

By Garry Vatcher

People often ask me when they should obtain a power of attorney in Ecuador. My usual response is: when you get off the plane. That may sound dramatic, but Ecuador is a very rules-based society, and rules are rules. Becoming caught in both a personal emergency and a bureaucratic nightmare at the same time can cause enormous grief.

Fundación Hogar de Esperanza will present a workshop August 12 about the power of attorney in Eccuador.

Fundación Hogar de Esperanza has helped many expats and visitors navigate the complicated question of who is legally permitted to represent them during an emergency. Our recommendation is always to have a clear plan-one that protects your interests, respects your wishes, and helps ensure that you receive the best care possible.

When you plan to live in Ecuador, it is better to have a properly prepared power of attorney that clearly defines your wishes. Once it is completed, you can put it away and get on with living your life.

What Rules Should Expats Consider?

International Powers of Attorney
A POA prepared abroad will not necessarily be accepted in Ecuador. Depending on where it was executed and how it will be used, it may require notarization, an apostille or consular legalization, an official Spanish translation, and possibly other formal recognition by Ecuador. When someone living in Ecuador becomes incapable of making decisions, a family member living abroad may be able to grant authority to someone in Ecuador through an Ecuadorian consulate.

Powers of attorney prepared in Ecuador may also be accepted in other countries, although this depends on the laws of that country and the requirements of any individual bank, government department, hospital, or other institution. Foreign consulates may also assist their citizens in preparing documents intended for international use.

Because the rules vary, you should always confirm the requirements with the institution that will receive the document.

The Family Rule
In Ecuador, family relationships carry considerable legal and cultural importance. During an emergency, legally recognized family members may be permitted to do certain things without a power of attorney. However, problems can arise because the legal definition of family may be different from your personal definition.

You may have lived with someone for many years and consider that person your spouse or life partner. However, unless that relationship is legally recognized in Ecuador, that person may not have the authority to make medical, financial, or legal decisions for you.

Family names can also create complications. In Ecuador, people normally retain their family names after marriage. Problems may arise when foreign family members have different surnames because of marriage, divorce, adoption, or other circumstances. Officials may require documentation proving the relationship.

When there is no clearly authorized family member, more than one relative may be required to agree before a decision can be made. This can create serious delays, particularly when family members live abroad, disagree with one another, or are estranged from the person involved.

A power of attorney can clearly identify who you consider family, who is authorized to act for you, and who you do not want involved in your affairs.

Types of Powers of Attorney
In many countries, people are familiar with several different categories of powers of attorney.

In Ecuador, they generally fall into two broad categories:

A general power of attorney grants broad authority to act on your behalf.
A specific power of attorney grants authority for a clearly defined purpose, transaction, or period of time.

A specific power of attorney may be appropriate when someone needs to complete one particular task, such as dealing with a visa, selling property, completing a banking transaction, or representing you before a government agency.

Although we do not recommend granting broad authority to a lawyer, facilitator, or person you do not know well, a carefully limited power of attorney can define exactly what that person may do and when that authority expires.

What Do We Recommend?
Choose your representative very carefully. Trusting someone personally does not necessarily mean that person has the judgment, emotional strength, availability, or knowledge required to make difficult decisions for you. Your power of attorney should clearly identify who is authorized to act on your behalf and what decisions that person may make.

A condition such as “only when incapacitated” sounds sensible, but it must define who determines incapacity. One physician? Two physicians? A specialist? A physician licensed in Ecuador?

It should also identify anyone you do not want treated as family or involved in your medical, financial, or personal affairs. Where possible, we suggest designating one primary family member or trusted representative. You may also name an alternate in case the first person is unavailable.

When family members have different surnames, clearly explain their relationship to you. When you have no family, are estranged from your family, or do not want certain relatives involved in decision-making, that should be stated clearly.

You should also consider separating medical authority from financial authority. The person who is best able to advocate for your medical care may not be the person you want managing your money. A power of attorney should protect you-not expose you to greater risk.

People should know how to cancel or replace the POA if a relationship changes. A revocation should not merely be signed and placed in a drawer. The former representative and every institution holding the earlier POA should be notified. Ecuador’s notarial system includes formal revocation and notification procedures.

Prepare Before the Emergency
The worst time to begin discussing a power of attorney is after an emergency has already occurred. At that point, you may be unconscious, unable to speak, mentally confused, physically incapable of signing, or legally considered incapable of making decisions. Your friends may want to help, but good intentions do not create legal authority.

Your partner may know exactly what you want, but a hospital, bank, government office, or insurance company may not be permitted to listen to them. Your family may be thousands of kilometres away—or may be people you do not want involved at all.

Trust alone is not enough. The representative must also be willing, available, organized, and able to function in Spanish or obtain competent assistance.

Preparing a power of attorney does not mean giving up control of your life. It means maintaining control by deciding in advance who may act for you, what they may do, and what limits must be respected.

Complete the document while you are healthy and capable. Review it periodically, particularly after a change in your health, relationships, residence, finances, or family circumstances.

Then put it away, hope that you never need it, and get on with enjoying your life in Ecuador.

A Power of Attorney Is Not the Entire Plan
A power of attorney is important, but the document alone is not enough. Your representative must know that they have been appointed, understand your wishes, know where the document is located, and be prepared to act. You should also have an alternate in case your first choice is unavailable.

Medical authority and financial authority do not necessarily have to be given to the same person. The individual you trust to advocate for your health may not be the person you want managing your bank accounts or property.

The document should clearly state when the authority begins, what the representative may do, what they may not do, and what evidence is required if the authority is activated only upon incapacity.

You should also prepare an emergency file containing your identification, insurance information, medications, medical history, emergency contacts, family relationships, banking contacts, and instructions for your home and pets.

Review your plan regularly. Relationships change. Representatives move away, become ill, die, or are no longer appropriate. A power of attorney that names the wrong person can be more dangerous than having no power of attorney at all.

Most importantly, do not assume that a power of attorney replaces a will, guarantees acceptance by every institution, or automatically gives someone unlimited authority over every decision.

Have the document prepared for your individual circumstances, confirm that the important institutions will recognize it, and make sure the people you trust are ready to use it. The goal is not merely to have a signed document. The goal is to ensure that, when you cannot speak for yourself, the right person can speak for you.

How we can help you
Fundación Hogar de Esperanza provides practical guidance and support but that each person should have their documents prepared or reviewed by a qualified Ecuadorian attorney or notary.

We have several ways of assisting you. On August 12, as part of our Wednesday at the Hogar, we will be doing a special presentation on POAs where you can get your questions answered. To sign up, click here.

We also have several programs, such as our Club Esperanza program for monthly donors, where we can store your personal contact information and provide you with a card that allows people to contact us for that information, if needed.
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Garry Vatcher is president and founder of Foundation Hogar de Esperanza. He has been coming to Ecuador since 1987 and permanently moved to Cuenca 12 years ago. The foundation provides emergency assistance to thousands of people each year. With his guidance, the foundation has forged alliances with some of Ecuador’s major institutions including hospitals, the National Police, Amazon communities, universities, and governments. The foundation has received numerous awards and recognition for its work from local and international bodies. For information about all Foundation Hogar de Esperanza projects, go to https://hogaresperanza.org