This is the second post in a series of four posts with which, from the Notary Bosch-Bages, we want to inform you and clarify your doubts about the reform of incapacitation in the Civil Code. In the Previous post, we explained the motivation for the reform, as well as its general scope. This post explains how the classic institutions of incapacitation remain after the reform: the protection and curatorship.

What happens to guardianship and curatorship after the reform?

With the entry into force of the 8 / 2021, the possibility of constituting a series of legal figures for those of legal age is eliminated. It is not possible, therefore, to establish guardianships, curatorships, and/or establish the parental authority extended or reinstated. This is due to the will of the legislator to defend the rights recognized in the New York Convention (2006), which establishes that persons with disabilities have the right everywhere to recognition of their legal personality. The right to recognition of legal personality includes the legitimacy to exercise legal capacity under equal conditions. Since the incapacitation procedure existed in Spain, which annulled any possibility of exercising legal capacity, the need to reform the Civil Code has been seen. With this reform, it is intended to provide better protection for the rights of citizens who may require assistance or support.

Guardianship reform in the Catalan Civil Code

From the entry into force of the decree-law, therefore, guardianship, curatorship and parental authority extended or rehabilitated; they can no longer be constituted in relation to persons of legal age. Any reference to guardianship, conservatorship or extended parental authority for persons of legal age must be understood as referring to the newly established assistance. The legislation referring to guardianship and curatorship has not changed in the Catalan Civil Code, since the current reform (Decree-Law 19/2021) is intended to be transitory.

These institutions remain in the Catalan Civil Code in a "ghostly" way. They act as norms for those already constituted, but it is no longer possible to constitute new guardianships or conservatorships. According to the Third final provision of Decree-Law 19/2021, all references in the Catalan Civil Code to curatorship or extended parental authority must be understood as referring to the new support measures (assistance), provided they deal with people of legal age. In the next post we will explain what the reformed Assistance is and how it works. 

How does the reform affect people who are already disabled?

For those people with a guardianship or curatorship constituted before the reform, they are maintained until a future revision. As it is a transitory norm, the legislator has “minimizing” the reforms to the Catalan Civil Code. The procedure and regime has been established for the people already affected through the Second additional provision of the Decree Law. The affected person, or who holds the guardianship or parental authority; they can request the revision of the measures to adapt them to the suppression of the figures and create adequate assistance to the needs of the affected person. The review, being a response to incapacitation, must be carried out judicially; within a maximum period of one year from your request. For its part, the judicial authority or the public prosecutor's office may request ex officio review; within a maximum period of three years from the entry into force of the Decree Law. 

The legislator's intent with this review procedure is to ensure that all persons, including those who had been incapacitated, are covered by the new legislation. In the revision, the existing measures will be adapted to the abolition of guardianship for adults; and an assistance system will be established, appropriate to the needs of the affected person. 

As has already been mentioned, all these measures are transitory, and it is not possible to know what the final regulation by the Legislator will be. In view of this, from the Notary Bosch-Bages We recommend waiting for the final reform. Thus, it is possible to ensure the person all possible measures and safeguards, ensure the least number of procedures and greater legal certainty.

If you want advice or have questions about it, do not hesitate to contact us at Bosch-Bages.