When a client tells me their brother “robbed” their mother by taking money from the account she let him manage, the first thing I correct is the word, because robbery in the Spanish Criminal Code requires force or violence, and here the money was handed to him. What they describe is misappropriation (apropiación indebida) under Article 253, committed by someone who receives money or property to keep, manage or return and keeps it instead, and punished like fraud, with six months to three years in prison above 400 euros and one to six years above 50,000, among other aggravated cases. The word matters because it changes what must be proved. With theft or robbery the question is how the person got hold of the money, whereas with misappropriation it is why they were given it and what they did with it.
At Perseus & RC Abogados in A Coruña I handle these cases myself. I am Luis Jurado Cano, a criminal lawyer registered with the A Coruña Bar under number 6317, and where an inheritance or a civil claim is involved I work with Ana Reza, managing partner of our civil department. This page is part of our fraud section.
Who commits it
What these cases share is trust. Someone received money or property with a task, to keep it, manage it, sell it and hand over the price, or pay something on another’s behalf, and instead kept it or denied receiving it. We see the son or nephew authorised on an elderly person’s account who spends the money on himself, the attorney under a notarial power who transfers funds into their own name, the adviser who collects a client’s tax money and never pays it in, the property manager who diverts the community’s funds and the agent who sells a car or jewellery and keeps the proceeds. Holding a power of attorney or being a joint holder of an account lets someone withdraw money, but it does not make them its owner. The money belongs to whoever put it there.
When the person is a relative
Spanish criminal law has its own rule here. Spouses who are not separated, parents, children, grandparents, grandchildren and siblings are not criminally liable for property offences against each other committed without violence or intimidation, and only have to pay back what they took. Parents-in-law and sons- or daughters-in-law are in the same position only if they live with the victim. The exemption does not apply where the relative exploited the victim’s vulnerability because of age or disability, which is exactly what is argued when a child empties the account of a parent with dementia. Medical reports, any official disability or dependency assessment, what carers and neighbours saw, and the timing of each withdrawal against the course of the illness decide those cases.
The usual defence is that it was a gift. Spanish law allows a cash gift to be made verbally if the money is handed over at the time, but whoever claims it must explain why someone who could barely make decisions gave away their savings. If the person has died, the claim passes to the heirs and usually overlaps with dividing the estate, as I explain in dividing an inherited flat between siblings. See also our inheritance page.
Misappropriation or breach of trust
Both offences carry the same penalties and are often confused. In misappropriation the person keeps what they were given. In breach of trust (administración desleal) they do not keep it but manage it beyond their powers, for example by selling a property below value to a friend, paying themselves unapproved fees or making investments they were forbidden to make, and cause a loss. The complaint must be framed around the right one, because breach of trust also requires proving what powers the person had, how they exceeded them and how much was lost. If the money was taken by a business partner, see unpaid loans and business partners.
Demanding accounts and getting the money back
I usually start by demanding accounts. Anyone who manages someone else’s money on their behalf is legally bound to account for it and hand over what they received. A formal demand by burofax asking for supporting documents sometimes settles the matter, and if it goes unanswered, the refusal itself is something the court will weigh. Bank statements, which the account holder or the heirs can request, show where each amount went. The criminal route allows the court to freeze the accused’s assets during the case, and a conviction orders repayment without a separate lawsuit. The civil route is the only one when a close relative is exempt from punishment.
Where we are
Rúa Torreiro 13, 3.º C, 15001 A Coruña, Spain. Phone +34 677 841 007. If you live abroad or the person affected cannot travel, we speak by video call in English. For the first conversation, the statements you have, the power of attorney or bank authorisation, and any medical reports are enough to start.
Frequently asked questions
My brother was an authorised user on our mother's account and took money. Is that a crime in Spain?
Being authorised allowed him to use the money for your mother, not for himself. If he used it for his own benefit it is misappropriation, although Spanish law does not criminally punish siblings or parents and children for this unless he exploited your mother's age or disability. Either way he has to pay it back, and that can be claimed even without a conviction.
What is the difference between misappropriation and fraud?
In fraud the money is obtained through prior deception. In misappropriation it was handed over in good faith with a task attached, to keep it, manage it or return it, and the dishonesty comes later, when the person keeps it. The penalties are the same.
Our mother has died. Can we claim the money taken from her account?
Yes. Your mother's claims pass to her heirs, who can ask the bank for her statements and claim back withdrawals that cannot be justified. If the person who took it is also an heir, the matter overlaps with dividing the estate and is best raised at the same time.
How long is there to report misappropriation in Spain?
Five years from when the money was kept, ten in serious cases such as amounts over 50,000 euros, and one year if it was 400 euros or less. Where many withdrawals form a single offence, the period runs from the last one.