Unfair Administration of Assets Defense in Marbella

From a corporate offence to a general property offence: the 2015 reform

Until the reform brought about by Ley Orgánica 1/2015 (Spain's 2015 amendment to the Criminal Code), unfair administration was structured exclusively as a corporate offence, regulated under the now-repealed article 295 CP, which left outside the scope of criminal liability — or forced an artificial reclassification as misappropriation — numerous cases of unfair management of third-party assets with no corporate link whatsoever: the guardian who squanders their ward's assets, the attorney-in-fact who exceeds the powers granted to the detriment of the principal, or the executor who wrongfully administers an estate's assets. The legislature expressly acknowledged this systematic misplacement and moved the offence to the Title covering property offences, structuring it as a general offence applicable to any administration relationship, regardless of whether a commercial company is involved or not.

The three sources of administration powers

Article 252 CP identifies three possible sources of administration powers whose exceeding triggers criminal liability, a point the Tribunal Supremo (Spain's Supreme Court) has clarified precisely:

"...los que teniendo facultades para administrar un patrimonio ajeno, emanadas de la ley, encomendadas por la autoridad o asumidas mediante un negocio jurídico, las infrinjan excediéndose en el ejercicio de las mismas..."

This threefold source is decisive for identifying, in each specific case, who may be the perpetrator of the offence: powers arising from the law, such as those of the guardian or the curator over the protected person's assets; powers entrusted by the authorities, such as those of the judicial administrator or the depositary appointed in proceedings; and powers assumed through a legal transaction, such as those of the attorney-in-fact, the civil agent, or the testamentary executor. In all cases, liability does not depend on the formal title of the position, but on the actual existence of a power to manage third-party assets.

Guardians and curators: administering the protected person's assets

A guardian or curator who administers the assets of a minor or a person with a disability requiring support may commit unfair administration when they dispose of that person's assets or income for their own benefit or that of third parties, or when they make asset-management decisions contrary to the protected person's interest, exceeding the powers granted by the court order establishing the guardianship or curatorship. The particular vulnerability of the person whose assets are being administered, and the periodic judicial oversight to which these institutions are subject — annual accountability, judicial authorisation for significant disposal transactions — constitute both the usual source of the notitia criminis (the first notice of a possible crime) and first-order evidence in these proceedings.

Civil agents and attorneys-in-fact: exceeding the powers granted

Anyone who receives a general notarial power of attorney or a mandate to administer a third party's assets, bank accounts or investments — a common scenario among family members, particularly involving elderly relatives — may commit unfair administration when they use those funds for purposes outside the mandate conferred, or when they carry out transactions that clearly exceed the scope of representation granted. Correctly delimiting the exact content of the power of attorney or mandate — which powers were expressly conferred and which were not — is the first matter of evidence in these proceedings, and determines whether the conduct in question remains within the bounds of debatable but lawful management or, on the contrary, exceeds the scope of representation to the point of being criminally relevant.

Testamentary executors and administrators of communities of owners

The executor responsible for administering and settling an estate, or the administrator of a community of owners who manages the shared funds, are equally subject to the regime of article 252 CP when, in carrying out their duties, they dispose of the administered assets in a manner contrary to the interest of the heirs or the community, causing an assessable financial loss. In the case of communities of owners, judicial practice records, with some frequency, proceedings for unfair administration linked to the contracting of works or services on terms clearly detrimental to the community, or to the diversion of funds earmarked for special assessments or the reserve fund toward purposes outside their legal purpose.