Understanding Legal Disability and Guardianship in Spain

Posted on Nov 25, 2024 in Law & Jurisprudence

Disability

There may be people who have altered physical capabilities or psychological state that cannot be controlled by themselves. In these cases, if there is a cause for disability (the person is not self-sufficient) and this condition is ongoing, a declaration of inability is urged for the person. Only a judge can declare a person disabled (Civil Code, Art. 199). Article 200 of the Civil Code states that causes of disability are persistent physical or psychological illnesses or deficiencies that prevent the person from governing themselves.

Causes of Disability (2 Types)

  • Total: The person’s ability to manage all aspects of their life is completely reduced. A legal representative will be appointed (guardianship).
  • Partial: When the disability is not very high, but the person cannot manage certain aspects (money, work, etc.), they will be subject to a guardianship regime.

Disability Procedure

  • Litigation: Judicial procedure, rules governing the judicial process.
  • Substantive Law: Rules governing the rights and obligations of persons (natural or legal).
Who Can Request a Disability Declaration?
  • Spouse/Partner
  • Parents/Descendants
  • Public Prosecutor’s Office (legal defense and protection of certain persons, e.g., minors and incapacitated individuals; protection of rights such as honor, image, and privacy)

Disability for Minors

In the case of minors, the request for a disability declaration can only be made by parents or tutors. Disability is not usually requested for minors as they are under the supervision of a parent or tutor. A disability declaration for a minor is only foreseen if they have an illness that prevents them from being self-sufficient and that will continue after they reach adulthood.

Request for Disability

The disability application is accompanied by a request to appoint a legal representative: tutor, curator, or parents/guardians.

Proof Needed to Prove Disability

  • Physical examination (medical court, i.e., coroner)
  • Recognition by the Judge of First Instance
    • Civil matter
    • Place of the last home of the alleged incapacitated person
  • Hearing of relatives of the alleged incapacitated person
  • Additional evidence as deemed necessary by the judge (the three previous tests are required)

Once this procedure is completed, the sentence will determine:

  • Disability and Permitted Acts:
    • Total: Requires a legal representative.
    • Partial: The person cannot perform certain acts without the authorization of a legal representative or curator (Family Code, Art. 212).
  • Appointment of a legal representative

Disability Statement Registration:

  • Birth Registry (Next): Disability statement
  • Book of Safeguards: Representative’s rating of disability

A disability advocate must always be appointed to act as the legal guardian of the incapacitated person until a representative is designated. If the prosecutor requests it, a relative will be appointed as the defender, or vice versa.

The disability need not be permanent. If circumstances change, a lawsuit can be initiated to modify the measures (e.g., improvement or worsening of the disability).

Representation or Guardianship Organizations in Cases of Disability Declaration

1. Guardianship

Guardianship (Family Code, Art. 167 et seq.) is a mechanism for representing and assisting incapacitated individuals.

  • Legal representation is provided to emancipated minors who are not under parental authority.
  • Legal representation is given to a person declared totally incapacitated and not subject to extended or rehabilitated parental authority.

Functions of a Tutor: Protects the mentored person both personally and patrimonially (economically).

Who Can Be a Tutor?

  • Individual
  • Institutional: Must be authorized to exercise guardianship duties.

How is a Guardian Decided?

Possibilities:

  • Self-Protection:
    • A person anticipates the possibility of their own disability.
    • Formalized by deed (notarial deed).
    • The attorney puts you in understanding the record of appointments not testamentary guardians and must enroll in the civil registry.
  • Parental: Possibility that a deed or will appoints a guardian for emancipated minors or disabled children under their authority.
    • Deed: Non-testamentary guardian appointment, registered in the civil registry.
    • Testament: Must be recorded in the Registry of Last Wills. This is checked to see if a person left a will.
  • Judicial: In cases where a guardian is not voluntarily appointed, the judicial authority decides who is appointed.
    • The Family Code (Art. 179) provides an order of precedence.
    • The position of tutor is required, and one can only decline with a reasonable excuse (e.g., lack of relationship with the person or professional reasons).
    • It is an unpaid position unless the court orders otherwise or it is stipulated in cases of voluntary guardianship (e.g., when the supervised person has significant assets).
    • An inventory must be made within 60 days of accepting the charge. The judge may require the guardian to pay a bond.
    • The inventory must be submitted to the court.
    • An annual account must be rendered to the court and registered in the guardianship records.
    • The judge may allow auditing to be done over a longer period (maximum 3 years).

When Guardianship Expires:

  • When the disability terminates.
  • When the guardian resigns from their post.
  • Death of the guardian.
  • Death of the supervised person.

Upon termination of guardianship, accounts must be submitted to the authority, and the court must approve them.

2. Curatorship

(Family Code, Art. 237 et seq.)

Uses of Curatorship:

  • Partial disability.
  • Emancipated minors with limited capacity to act (Family Code, Art. 212) require a supplement to their capacity. If there is no parent or spouse, a curator is needed.
  • Prodigals: Individuals with altered behavior regarding the management of their property, to the detriment of those entitled to receive money from them. A sentence declares a spouse, ancestor, or descendant as a prodigal.
  • To administer assets in favor of a conceived person.

Performance:

It is similar to guardianship, but the curator does not administer but rather authorizes certain acts. The curator does not submit accounts, except in the case of administering assets for a conceived person.

Court Advocate

Judicial Ombudsman (Family Code, Art. 247)

Appointed by the judge in the following cases:

  • Until a legal representative (guardian or curator) is appointed.
  • When there is a conflict of interest between the incapacitated person and their representative (among or between the incapacitated person, the guardian, and the curator, or in the case of a prodigal).

Duration of Court Advocate:

  • Limited duration, as they are not appointed as a guardian or curator but for a specific act or conflict of interest.