Question how to obtain a declaration of Incapacity in Spain.
My father lives in Alicante (Javea) and is 84 years old. He is not as mentally able as he was before, and I have observed that his capacity is beginning to deteriorate. My mother who lives with him is very worried as he has made some rather odd investments and has lost quite a large amount of money. Even though we have told my father repeatedly not to make any decisions without consulting with us, he doesn’t listen, and we are worried that he will end up losing his and my mother’s estate, or that he will make poor decisions as he is no longer able to think clearly.
Is there anything legal that we can do? How can we stop our father from making decisions that will affect him and my mother?
Answer.
Dear reader thank you very much for your query.
The answer to your question is YES, the legal system provides in these cases the possibility of initiating procedures for declaration of incapacity in Spain, (incapacitación), which is regulated by the Code of Civil Procedure- Civil Jurisdiction Law.
(Ley Enjuiciamiento Civil), in the 748 and subsequent articles.
The procedure is to limit the capacity to act of your father, that is, he cannot make decisions or reach agreements by himself.
According to the Spanish Civil Code ( Código Civil), Article 199 a person can be declared unable only if it is ruled by a JUDGE, that is, your father can keep making decisions, signing agreements etc. unless a court determines that he is incapable.
According to Article 200 of the same Civil Code the following are causes for disability “the persistent diseases or disabilities such as physical or mental condition that would prevent the person governing himself.”
Therefore, in your case, the court proceedings for disability would try to prove that your father has psychic and mental deficiencies that prevent him from taking the right decisions.
Features
In connection with the proceedings of Declaration of Incapacity in Spain, it could highlight some features such as:
I
First, it has a number of features that are also common in family proceedings, minors, etc. Such as: the intervention of the prosecution is mandatory, that the parties must be represented by a lawyer, etc.
II
Second, it is important to note that in relation to the tests that will be performed in the proceedings, the court can request as many examinations as it deems necessary, since what matters in such cases is to know the proven truth and it is not relevant whether the parties agree on certain points.
III
Third: Which court has jurisdiction? The court that has jurisdiction to declare the disability is the court that rules in the place where your father is domiciled. In this context we mean ‘domicile’ as interpreted by Spanish law, namely the place where the person lives.
IV
Fourthly: Locus standi (who can ask the court to declare that your father lacks capacity?) According to Article 757.1 of the Civil Procedure Act, an application for incapacitation can be brought by the spouse or whoever is in a similar situation, e.g.a partner, and also the descendants, ascendants or siblings of the alleged disabled (art. 757.1 LEC).
In addition, any person, being not those mentioned above, could inform the public prosecutor of the alleged unfit individual so that the prosecutor could take action to have the person declared disabled (art. 757.3 LEC.).
V
Fifth: Expert and specialist report. In this type of case, the performance of specialists in medicine and psychiatry is very important and the Article 759.1 of the LEC states that “a decision over the disability can never be made without a report from the medical expert agreed by the Court” because the judge needs to know what your father’s limitations in order are to determine the conditions of disability, extent etc.
VI
Sixth: Decision Making by your father during the court proceedings: this is a procedure by which your father may lose important rights such as his ability to make decisions on his own and therefore it will only come into force when the court has ruled, and a Court Order-Sentence (sentencia judicial) has been issued. Until this happens your father can continue to make decisions.
Interim measures.
It is also true that the law provides the possibility of taking precautionary measures (medidas cautelares) by the judge, to prevent your father from performing certain acts, which may affect his or your mother’s estate during the proceedings. These measures can be taken by the judge, during or even before the proceedings.
The precautionary measures taken by the judge may vary, he can order your father to be admitted to a hospital for treatment, or notify the Land Registry and the Civil Registry so that he cannot sell properties, or any other measures that the court deems appropriate, including precautionary measures that would prevent your father from acting or managing his property, or could even appoint an administrator.
VII
Seventh: PURPOSE OF PROCEDURE: Through a process of disability you can get the court to deprive your father of his capacity to act, to sign any relevant agreements, or just to put a limit on it.
In these matters, we must bear in mind that according to the specific circumstances of each case, this declaration of incapacity will produce legal effects or other, thus:
Conclusion:
1.-Your father may be fully or only partially deprived of the capacity to act, e.g. the ability to reach valid agreements, etc.
2.-An order will be issued appointing a deputy for your father and the actions that this deputy can take will be established as well as the extension of the system of guardianship.
3.-If necessary, an agreement could be reached for the placement.
Finally, we must remember that the disability court sentence is not legally “final” in the sense that if your father is declared unfit but then his mental capacity improves, he can stop or reduce this cause that led to his declaration of incapacity, providing the court ruling states that the scope of disability established that can reversed or modified.
(art.761.1 LEC).
*The information provided on this article is not intended to be legal advice but merely conveys general information related to legal issues.
White & Baos
Carlos Baos ( Abogado / Lawyer)
Tel: 966 426 185
E-mail: info@white-baos.com
**(Located at the Glorieta (Square end) of Marques de Campo)
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