THE Law 8/2021 reforming civil and procedural legislation to support people with disabilities in the exercise of their legal capacity has introduced many changes regarding disability in Spain and its legal treatment.
This law changes the previous model that existed in Spain. Previously, the decision-making of persons declared incapable was substituted by the decisions made by their guardians or curators. Now, the person with a disability makes his or her own decisions, and his or her will and preferences are considered.
This is a very important and beneficial change, as it is a step towards respecting the right of equality of all persons in the exercise of their legal capacity.
1. Then and now: differences between processes with people with disabilities
One of the major legal novelties of disability in Spain is the disappearance of incapacity and incapacitation. In the current system, the person cannot be incapacitated, as was previously the case, but what is promoted are a series of supports and aids so that they can develop their lives.
This support conceived in the law is a broad term. It encompasses different actions that the person may need: technical help in the communication of declarations, friendly accompaniment, advice, etc.
2. How to initiate the procedure
The procedure is part of the so-called Voluntary Jurisdiction procedures –Jurisdicción Voluntaria. At present, therefore, it is necessary to apply for stable legal support measures at the Court of First Instance – Juzgado de primera instancia – of the place of residence of the person with a disability for whom we want to apply for these measures.
In this document, the pathologies of the person for whom the measures are requested and which make support necessary must be indicated. It may also include the person’s behaviour that justifies the need for support, for example by indicating that the disabled person:
– habitually creates situations of conflict between the closest relatives.
– is the owner of significant assets which, given his or her characteristics, are complex to manage.
– is uncontrollably and habitually incurs large, inappropriate, uncontrollable and/or harmful expenses.
– lack of capacity to understand or express a wish.
The Court, once it has interviewed the person with a disability, has made expert opinions in the social and/or health field and has heard the next of kin, should adopt only those measures that are strictly necessary given the circumstances of the specific case.
Any person who requires such measures may obtain them, irrespective of whether administrative recognition of his disability has been obtained.
3. Most important figures: curator (Spanish curador)
The most important figure in this law is the curator or deputy (Spanish curador). The purpose of the curator is to provide support, assistance and help in the exercise of legal capacity. An attempt will be made to exclude, as far as possible, representing the disabled person.
The new law eliminates guardianship (Spanish tutela), extended parental authority and rehabilitated parental authority. These concepts are not very flexible and prevented the autonomy of adults with disabilities from being expressed.
Conclusion:
The supports designated for each person with disabilities in Spain will have the function of ensuring that their will, wishes and preferences are respected.
The supports will not only refer to matters of a property nature, but also to the personal aspects of the disabled person’s daily life: health, usual communications, home and any others that may be requested. Contact us
If you want more information about the compensation to the guardian, or related matters, contact us.
The information provided in this article is not intended to be legal advice, it merely conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
White & Baos 2022 – All Rights Reserved.
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