In civil incapacity proceedings, the right to apply for a declaration of incapacity lies with the spouse or partner, children, parents or siblings, where a physical or mental illness or impairment prevents the person from managing their own affairs. The purpose of such proceedings is to protect the individual both personally and financially. Where the person concerned is a minor, only those holding parental responsibility or guardianship are entitled to apply.
Incapacitation may be total or partial. In the former case, a guardian will be appointed; in the latter, a curator (a supervisory figure who assists rather than replaces the individual's decision-making).
Declaration of incapacity:
Judicial support and assistance measures for persons lacking legal capacity
In recent years, the Spanish legal system has undergone a significant reform in what was previously known as the incapacitation process. Following the entry into force of new legislation, this process is now referred to as judicial support and assistance measures, a change that reflects a greater sensitivity towards the protection and support of individuals who are unable to manage their own affairs independently.
What does this procedure involve?
This procedure applies to individuals who, as a result of illness or cognitive decline, are no longer able to make decisions in their day-to-day lives, whether in legal or financial matters. The aim of the process is to ensure that such individuals receive the necessary support through the appointment of an assistant, also referred to as a guardian, who will act on their behalf in legal, financial and asset-related matters.
Steps in the judicial process
The process for establishing judicial support and assistance measures begins with the filing of a claim before the competent court, which is generally the court in the area where the person concerned is resident. The claim must be accompanied by a set of key documents, such as:
- Birth certificate of the person concerned.
- Current medical certificates evidencing their state of health and inability to manage their own affairs.
- Family record book (Libro de Familia).
- Statement of assets and estate, including Personal Income Tax (IRPF) and wealth tax returns, as well as any Social Security resolutions relating to pensions currently being received.
Once the claim has been filed, the judge will appoint an expert panel, including a forensic physician, to assess the capacity of the person concerned. A date will then be set for a oral hearing, at which close family members and, where necessary, witnesses will appear. Following the hearing, the judge will issue a ruling determining the degree of incapacity and appointing the person's assistant or guardian.
Role of the assistant or guardian
The assistant is the person designated to act on behalf of the individual concerned. Once the ruling is issued, the person declared legally incapacitated will no longer be able to perform legal acts or enter into contracts independently; these responsibilities will pass to the assistant. The assistant may be a close family member, such as a son or daughter, who will take charge of managing all matters relating to the estate, contracts and other legal decisions.
Duration of the procedure and associated costs
The judicial support and assistance proceedings may take between 8 and 12 months, depending on the courts' caseload and the location in which the proceedings are conducted. In a city such as Barcelona, this would be the typical timeframe.
How much does an incapacity procedure cost?
For information on fees, please contact us for an estimate taking into account both the lawyer's and the court representative's (procurador) costs.
Conclusion
Judicial support and assistance proceedings are designed to protect the rights and wellbeing of individuals who, for health reasons, are no longer able to manage their own affairs. The purpose of these proceedings is to ensure that such individuals have the appropriate support to continue living with dignity and security, relying on an assistant to manage their affairs on their behalf.
Declaration of prodigality.
This applies to a person who habitually squanders their estate, placing it at unjustified risk to the detriment of their family.
The right to initiate a declaration of prodigality lies with the spouse or partner, descendants or ascendants who receive maintenance from the alleged prodigal or are in a position to claim it, and the legal representatives of any of the above. Failing that, the Public Prosecutor may act.
A person declared prodigal will be subject to curatorship.
If you need expert assistance:
LEGISLATION: Law 13/1983, of 24 October, on the Reform of the Civil Code in matters of guardianship.
Curatorship: General Provisions and Cases of Prodigality
Curatorship is a legal institution designed to protect and assist individuals who, due to particular circumstances, are unable to manage their own affairs independently. The following sets out the general provisions and the specific situations in which this form of protection applies.
General Provisions on Curatorship
Article 286. Persons subject to curatorship
Curatorship applies to individuals who, given their circumstances, require the involvement of a curator to assist them in decision-making. The most common cases include:
- Emancipated minors whose parents have died or are unable to provide the assistance required by law.
- Persons who have reached the age of majority but require assistance for certain acts.
- Persons declared prodigal, that is, individuals whose conduct places their assets and the wellbeing of their dependants at risk.
Article 287. Curatorship following a ruling of incapacitation
Curatorship also applies to individuals placed under this form of protection by a ruling of incapacitation, or by a subsequent judicial modification of that ruling. The scope of the curatorship will depend on the degree of discernment of the person concerned.
Article 288. Scope of curatorship in specific cases
In the cases provided for in Article 286, the curatorship has the specific objective of the curator's intervention in those acts which emancipated minors or spendthrifts are unable to perform on their own.
Article 289. The curator's role in cases of legal incapacity
Where a person is declared legally incapacitated, the curatorship focuses on the curator's assistance in those acts specified by the ruling. Curatorship therefore does not entail a complete substitution of the person's legal capacity, but is limited to the acts so indicated.
Article 290. Acts not specified in the ruling
Where the ruling declaring legal incapacity does not specify the acts requiring the curator's intervention, the curatorship shall be understood to cover the same acts for which, under the Civil Code, guardians require judicial authorisation.
Article 291. Rules applicable to curators
The rules on appointment, disqualification, excuse and removal that apply to guardians are equally applicable to curators. In this regard, persons who have been declared bankrupt or insolvent and have not been rehabilitated may not serve as curators.
Article 292. Continuity between guardianship and curatorship
Where a person who was under guardianship passes to curatorship, the role of curator shall be fulfilled by the same person who previously acted as guardian, unless the court orders otherwise.
Article 293. Annulment of acts performed without the curator's intervention
Any legal act performed without the curator's intervention, where such intervention is required, shall be voidable at the request of the curator or of the person subject to curatorship, in accordance with Articles 1,301 et seq. of the Civil Code.
Curatorship in Cases of Prodigality
Article 294. Application for a declaration of prodigality
A declaration of prodigality may be applied for by the spouse, or by descendants or ascendants who receive financial support from the alleged spendthrift, or who are in a position to claim such support. Where these parties do not make the application, the Public Prosecutor shall do so.
Article 295. Procedure for a declaration of prodigality
A declaration of prodigality must be made by means of adversarial proceedings, in which the relevant facts shall be assessed and a determination made as to whether the respondent's conduct justifies their classification as a spendthrift.
Article 296. Representation of the respondent in cases of non-appearance
If the respondent in proceedings for prodigality fails to appear, they will be represented by the Public Prosecutor. Where the Public Prosecutor is itself an interested party in the proceedings, a guardian ad litem will be appointed to represent the respondent, in accordance with the provisions of the Civil Procedure Act governing default proceedings.
Article 297. Acts carried out prior to a declaration of prodigality
Legal acts carried out by a person subsequently declared prodigal before the claim was filed may not be challenged on grounds of prodigality.
Article 298. Restrictions imposed on a person declared prodigal
The judicial ruling declaring prodigality will specify which acts the person declared prodigal may not carry out without the consent of their curator, thereby limiting their capacity to act in certain areas, particularly those relating to the management of their assets.
CONCLUSION
These provisions are designed to protect emancipated minors, persons declared legally incapacitated, and persons declared prodigal alike, ensuring that their interests and assets are safeguarded under the supervision and assistance of a curator.
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