Legislative change in proceedings involving persons with disabilities.
Law 8/2021, of 2 June, which reforms civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity, came into force on 3 September 2021 and has brought about 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 a human being, regardless of the physical, mental, intellectual or sensory impairments that may affect the person.
What process exists for the determination of support measures for persons with disabilities?
a.- There is no judicial procedure for modification of capacity or incapacitation. It will deal exclusively with “persons with disabilities” and the judicial proceedings will deal with the determination of support measures for persons with disabilities for the exercise of their legal capacity.
b.- Any measure must always take into account the will, wishes and preferences of the person with disability. However, exceptionally, measures may include representative functions, as long as the life trajectory of the person with disabilities, namely their beliefs and values, is respected.
c.- It is conducted through voluntary jurisdiction proceedings.
d.- The judicial decision that establishes support for a person with a disability must be reviewed every three years or, with reason, every six years.
What are the legal figures of support for persons with disabilities?
- The support measures for the exercise of the legal capacity of persons who need it are, in addition to those of a voluntary nature established by the person with a disability, the de facto guardianship, the curatorship and the legal guardian.
- Self-guardianship, whereby a person can establish, in a public deed, the persons who can exercise the function of guardian.
What are the formal support figures or measures?
1. De facto guardianship.
Whoever has been adequately exercising the de facto guardianship of a person with disabilities will continue in the performance of his or her function.
When, exceptionally, the representative action of the de facto guardian is required, he/she will have to obtain authorisation to carry it out through the corresponding voluntary jurisdiction proceedings.
The judicial authority shall constitute the guardianship by means of a reasoned decision, when there is no other sufficient support measure for the person with disabilities. This shall be done by means of the corresponding voluntary jurisdiction file.
Only in exceptional cases in which it is essential due to the circumstances of the person with disabilities, the judicial authority will determine in a reasoned decision the specific acts in which the curator will have to assume the representation of the person with disabilities.
The representative guardian 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, relinquishing assets and rights, etc.
The guardianship is extinguished as of right by the death or declaration of death of the person with support measures or by a court decision.
3. Legal guardian:
This shall be appointed 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 interests between the person with disabilities and the person who is to provide support; or when the judicial authority deems it necessary; among others.
4. The elimination of extended or rehabilitated parental authority stands out:
In these cases, when the minor reaches the age of majority, he/she will be provided with the support he/she needs as the rest of the persons who may suffer from a disability.
With the elimination of extended parental authority, parents could become guardians of their children with representative functions.
Preventive powers in case of disability
Within the powers of attorney regulated in the Civil Code, we can find two types:
a.- 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 Notary Public, and a clause is established in them in which it is expressly stated that the power of attorney subsists if in the future the principal needs support in the exercise of his or her capacity.
b.- Preventive or anticipatory powers of attorney, which can be granted specifically in the event that the future principal needs support in the exercise of his or her capacity.
Thanks to our specialisation in this area, our firm, Winkels Abogados, can advise you on the whole process and its formalities at our law firm in Madrid.
Proceedings concerning persons with disabilities lawyers
Our extensive training in law and many years of professional experience in the legal profession enable us to guarantee excellent guidance, considering each situation individually in order to advise you in the most effective way possible.