Disability reform

Law 8/2021, of June 2, reforms the civil and procedural legislation on the old matters known as declaration of incapacity. The reform - which is inspired by the New York Convention of December 13, 2006 - involves a change in the system. Thus, at present, "substitution predominates in the making of decisions that affect people with disabilities", it is moving towards a system "based on respect for the will and preferences of the person who, as a general rule, will be in charge. to make their own decisions ”(EdM).

New process

Consistent with this statement, Law 8/2021 proposes a voluntary jurisdiction procedure as a habitual process and a contentious process reserved for the assumption that there is contention or conflict. 

  1. Voluntary jurisdiction process. 

The first process is housed within the Law 15/2015 to which a new Chapter III bis within Title II with the rubric: "of the file of provision of judicial measures of support to people with disabilities". It is regulated in the articles 42 bis a), b) and c).

La competition It is determined by the Court of First Instance of the place where the person with a disability resides. The procedure can be promoted by: 

  1. La file promotion. It can be promoted by the Public Prosecutor's Office; the person with a disability himself, his spouse not separated in fact or legally, or who is in an assimilable factual situation and his descendants, ascendants or siblings. 
  2. The disabled situation. The person with a disability may act in their own defense and representation unless it is not foreseeable that they do so, in which case the request will request the appointment of a legal defender who will act through a lawyer and attorney. 
  3. Process adaptation. The Lawyer of the Administration of Justice will make the necessary adaptations so that the person with a disability understands the object, the purpose and the procedures of the file that affects them. 
  1. Contentious process

The second process is housed in the Civil Procedure Act of 2000. This supposes the reform of the heading of the book IV, Title I and Chapter II which is called now and in what interests us "of the processes on the adoption of judicial measures to support people with disabilities. The material scope of this contentious process is delimited in article 756 of the LEC. There are two assumptions that it contemplates. 

  • In the cases in which in accordance with the applicable civil legislation. the appointment of curator is pertinent and in the voluntary jurisdiction file directed to this end, opposition has been filed. This means that the following requirements have to be produced so that this file can be used: 
    • that a voluntary jurisdiction file is initiated with the purpose of appointing a priest. 
    • that opposition to it has been formulated. 
  • In the cases in which the files for the appointment of curator have not been able to be resolved for any reason. 

If any of the two cases indicated occur, the adoption of judicial measures to support people with disabilities will be governed by the LEC and the judicial authority that knew the previous file of voluntary jurisdiction will be competent (art, 756 LEC, redacc, 2021 ). This jurisdiction has the exception motivated by the change of residence of the person to whom the request refers, in which case it will be the judge of first instance of the place where he or she resides.

Clarify your doubts contacting with our Notary in Barcelona.