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Lawyers specialised in Guardianships and Support Curatorships

At present, incapacity has been eliminated from our legal system, and a person with a disability may be provided, either judicially or extra-judicially, with support measures to complement his or her legal capacity.

Numerous laws have been changed in order to remove the term incapacity from them. Thus, the aim is to eliminate the word incapacity as a legal and social concept.

Similarly, there is no longer a guardianship (tutela) or guardian (tutor) for the person with disability formerly under guardianship, but a support curatorship (curatela) and a supporter (curador) now serve as the legal institution and main support figure for the .person with disability.

There are also other forms of support for the person with a disability (formerly incapacity), the most extensive being the representative support curatorship (curatela representativa). Previously, this protection was given through guardianship, being the guardian who, through a judicial procedure of incapacity, had these powers for the person under guardianship.

This is why specialised lawyers, guardianships and support curatorships are necessary and up to date in this area, because there are big changes: there is no incapacity, no guardianship or guardian for the disabled person.

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Guardianships and Support Curatorships

Guardianships and Support Curatorships of persons with disabilities

The New York Convention on the Rights of persons with Disabilities defines disability as an evolving concept resulting from the interaction between persons with impairments and attitudinal and environmental barriers that prevent their full and effective participation in society on an equal basis with others.

Legal capacity is inherent to the human being, irrespective of any physical, mental, intellectual or sensory impairments that may affect the person, in short, that may prevent his or her full and  effective participation in society.

Curatorship is a legal concept that applies to people of legal age who have some kind of disability and, through a judicial procedure, a supporter is appointed.

Guardianship, on the other hand, is another legal concept designed to protect the ward, minors who have been orphaned or whose parents are unable to exercise their parental responsibility. The person who is responsible for this is the guardian.

In the case of guardianship, the guardian, unlike the supporter, is responsible for the care and protection of the ward, in addition to administering his or her property and legally representing him or her. The guardian exercising the guardianship must be a trustworthy person.

Guardianships and Support Curatorships

Lawyers specialised in support curatorships for persons with disabilities

Our law firm in Madrid specialises in family and inheritance law, i.e. all the most private and

intimate aspects of a person’s life. To this end, one of our areas of legal expertise are proceedings relating to the capacity of people.

We will accompany you as lawyers throughout this process, receiving individualised and close treatment, in accordance with something so private and delicate for a person, such as the determination of support for a person with a disability, previously under guardianship.

By means of various meetings in our law firm or via videoconference, we will study your case, giving you prior advice on your case.

In order to successfully carry out this type of legal process, concrete evidence is needed,

which is why expert lawyers are required who know how to approach the whole process from the outset.

The experience of lawyers in this type of proceedings is essential, especially in view of the

legislative change that implies a different judicial process.

Our law firm is based in Madrid, however, we practice throughout Spain, where we have carried out this type of legal proceedings with excellent results and to the satisfaction of our clients.

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Guardianships and Support Curatorships

What is the process for determining support measures for persons with disabilities?

  • There is no court procedure for modification of capacity or incapacitation. It shall be exclusively “persons with disabilities” and court proceedings will deal with the determination of support measures for persons with disabilities in the exercise of their legal capacity.
  • Any measures must always take into account the will, wishes, and preferences of the person with a disability. However, exceptionally, measures may include representative functions, as long as the life path of the person with a disability, i.e. his or her beliefs and values, are respected.
  • It is carried out by means of voluntary jurisdiction proceedings. It is advisable to do this with the advice of specialised lawyers
  • The court decision fixing support for a person with a disability must be reviewed every three years or, with motive, every six years.
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Guardianships and Support Curatorships

What are the formal support figures or measures?

De facto Guardianship

Whoever has been adequately exercising de facto guardianship of a person with disabilities shall continue in the performance of his or her function. When, exceptionally, the de facto guardian is required to act as a representative, he/she must obtain authorisation to do so through the corresponding voluntary jurisdiction proceedings.

Therefore, being a de facto guardian does not, in principle, require judicial appointment.

Support Curatorship

The judicial authority shall constitute the curatorship by means of a reasoned decision, when there is no other sufficient support measure for the person with a disability. This will be done by means of the corresponding procedure in a voluntary jurisdiction file. The figure of the supporter requires appointment in a judicial procedure.

Representative Support Curatorship

Only in exceptional cases in which it is essential due to the circumstances of the person with a disability, the judicial authority will proceed to appoint a representative supporter by means of a reasoned decision and will determine the specific acts in which the supporter will have to assume the  representation of the person with a disability. The representative supporter will also need judicial authorisation to carry out certain types of acts such as alienating or encumbering real estate, disposing of assets free of charge, renouncing assets and rights, etc. The curator is extinguished as of right by the death or declaration of death of the person with support measures or by a court decision.

Temporary Legal Representative (Defensor judicial)

This appointment shall be made when the person who is to provide support is unable to do so, until the determining cause ceases or another person is appointed; when there is a conflict of interest between the person with disabilities and the person who is to provide support; or when the judicial authority deems it necessary; among others.

Our law firm will advise you on which support figure is the most appropriate in your case, and the procedure to follow, which is why you should turn to lawyers specialized in this area.

Stresses the elimination of extended or reinstated parental authority

In these cases, when the minor reaches legal age, he/she will be provided with the support he/she needs as other people who may suffer from a disability. With the elimination of extended parental authority, parents could become supporters of their children with representative functions.

Guardianships and Support Curatorships

Preventive powers in case of disability

Within the powers of attorney regulated in the Civil Code, there are two types:

Powers of attorney with subsistence of effects in the event of disability, which will take effect from the moment the principal grants it before a civil law notary, and a clause is included in them expressly stating that the power of attorney subsists if in the future the principal needs support in the exercise of his or her capacity.

Preventive or anticipatory powers of attorney, which may be granted specifically in the event that the future principal needs support in the exercise of his or her capacity.

For advice on what type of power of attorney you are most interested in, you should turn to specialised lawyers.

Thanks to our specialisation in this area, our firm, Winkels Abogados, can advise you on the whole process and its formalities in our law firm in Madrid.

Guardianships and Support Curatorships

When did judicial incapacitation disappear from the law?

Law 8/2021, of 2 June , which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, and therefore regulates the processes of people with disabilities, came into force on 3 September 2021 and has meant a radical change in this area, adapting to the New York Convention of 2006, especially article 12, which establishes that legal capacity is inherent to the condition of the human being, regardless of the physical, mental, intellectual or sensory deficiencies that may affect the person

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