If you have arrived here looking for how to have someone declared a spendthrift under Spanish law, the short answer is that you no longer can. Prodigalidad ceased to exist as a legal institution in September 2021, and with it went the declaration of incapacity and guardianship of adults.
What exists now is something different, with a different logic: a system of support measures that does not remove anyone's legal capacity but assists its exercise. This article sets out what changed, what applies today and what to do if an old declaration already exists concerning a relative.
Prodigalidad no longer exists
Act 8/2021 says so plainly in its preamble: prodigalidad is abolished as an autonomous institution, because the situations it covered fit within the support-measure rules introduced by the reform.
Its sole repealing provision leaves no room for doubt: all regulation of prodigalidad contained in any rule of the legal system is repealed. The same provision also expressly repeals articles 299 bis and 301 to 324 of the Civil Code.
A warning about sources is in order, because a great deal of well-meaning error circulates here. The former articles 286 to 298 of the Civil Code governed curatela and prodigalidad. Those article numbers still exist, but today they say something entirely different: 287 is the list of judicial authorisations required of a curator with representative powers, 294 their liability, and 295 to 298 the court appointed defender.
What applies today: support measures
Article 249 of the Civil Code sets the principles. The purpose is to allow the full development of the person's personality and their legal action on equal terms. Measures of legal or judicial origin apply only where the person's own will is absent or insufficient, and must comply with the principles of necessity and proportionality. Whoever provides support must act in accordance with the will, wishes and preferences of the person receiving it.
Article 250 lists four categories: voluntary measures, de facto guardianship, curatela and the court appointed defender.
Voluntary measures: what you decide for yourself
This is the preferred route, and the least known. Article 255 allows any adult to set out in a public deed the support measures concerning their person or their assets, defining their scope and whatever safeguards they wish to establish.
- The preventive power of attorney, articles 256 and 257. You can grant a power containing a clause keeping it in force should support be needed in future, or a power that only takes effect in that event. Article 258 adds an important point: such powers survive the later establishment of other support measures.
- Self-appointed curatorship, article 271. You may nominate or exclude specific people to act as curator in a public deed, and regulate how the curatorship is to work. Article 272 provides that this nomination binds the court, which may depart from it only by reasoned decision and in the face of serious circumstances unknown to the person who made it.
Put differently: those who plan ahead decide. Those who do not leave the decision to a judge and to a statutory order of preference.
De facto guardianship: often enough
This is an informal measure, and the reform gave it weight it did not previously have. Under article 263, a person who is adequately exercising de facto guardianship continues in that role even where voluntary or judicial measures exist, provided those are not being applied effectively.
The limit lies in representative acts: to carry them out, article 264 requires authorisation obtained through voluntary jurisdiction proceedings, in which the person with a disability is heard.
Curatela: only where no other sufficient route exists
Article 269 is explicit: the court establishes a curatorship where no other sufficient support measure exists. And here lies the substantive change from the previous system: curatorship is assistive by default. Representation is possible only in the exceptional cases where it is indispensable, and the specific acts must be defined precisely.
Where the curator does hold representative powers, article 287 requires judicial authorisation for a list of acts that includes disposing of or encumbering real property and business premises, dealing with assets of particular personal or family significance, and letting property for an initial term exceeding six years.
Article 294 sets their liability for fault or negligence, with a claim that is time-barred after three years from the final accounting.
Court appointed defender: for one-off matters and conflicts
Article 295 reserves this for specific situations: where the person who should provide support cannot do so, where there is a conflict of interest, or where the support needed is occasional, even if recurrent.
What has actually changed
- There is no longer any «declaration of incapacity», whether total or partial. Legal capacity is not removed. Its exercise is supported.
- An adult is no longer assigned a «guardian». Guardianship survives only for minors.
- It is not true that the person can no longer sign contracts. That much-repeated statement belonged to the previous system.
The first transitional provision of Act 8/2021 completes the picture: from its entry into force, mere deprivations of rights of persons with disabilities, or of the exercise of those rights, ceased to have effect.
The procedure: voluntary jurisdiction first
The default route is no longer contentious proceedings. Article 756.1 of the Civil Procedure Act draws the line: contentious proceedings apply only where opposition has been raised in the voluntary jurisdiction file, or where that file could not be resolved.
Who may bring it, article 757: the person concerned themselves, their spouse if not separated or a partner in a comparable situation, a descendant, an ascendant or a sibling. The Public Prosecutor must bring it where no such persons exist or where they have not done so.
Article 759 imposes evidence the court cannot omit: it must interview the person with a disability, hear the spouse and closest relatives, and order the necessary expert reports.
On timescales, let us be honest: actual duration depends on the court, and be wary of anyone quoting a fixed figure. What can be anticipated is the route: absent family conflict, voluntary jurisdiction proceedings are shorter and cheaper than a contentious action.
If an old declaration already exists
This is the most frequent situation in practice, and the one with a concrete action attached.
The second transitional provision keeps in force the measures arising from earlier declarations of prodigalidad until they are reviewed.
The fifth transitional provision, as worded by Organic Law 5/2024, sets out the mechanism:
- Those affected, expressly including persons declared pródigos, as well as guardians, curators, court appointed defenders and holders of preventive powers, may request a review at any time.
- Once requested, the review must take place within a maximum of one year.
- If no one requests it, the review is carried out by the court of its own motion or at the Public Prosecutor's instance within a maximum of six years.
That six-year period deserves a note, because the older figure circulates widely: the original wording of Act 8/2021 provided for three years, and it was Organic Law 5/2024 that extended it to six.
The practical consequence is straightforward. Waiting for a review of the court's own motion can mean years under a measure that no longer complies with the law. Requesting it triggers a one-year deadline.
New measures are reviewed too
Article 268 of the Civil Code requires judicially adopted measures to be reviewed within a maximum of three years. The court may, exceptionally and with reasons, set a longer period that cannot exceed six years. And they are reviewed in any event upon any change in the person's situation.
Court decisions and notarial documents on support measures are recorded in the Civil Registry, article 300.
What no longer holds, despite what you may still read
- The declaration of prodigalidad as an available procedure.
- Act 13/1983 reforming the Civil Code on guardianship, as applicable legislation.
- The former articles 286 to 298 of the Civil Code on curatela and prodigalidad, whose numbers today say something else.
- The declaration of incapacity and the appointment of a guardian for adults.
- Contentious proceedings as the normal route, with a judgment fixing a «degree of incapacity».
Let's talk about your case
In this area the operative question is not «how do I have them declared incapable», but what support this person actually needs and what is the least intrusive route to provide it. The law requires the question to be put in that order, and in practice it is also what generates the least family conflict.
If nothing has been established yet, the sensible starting point is usually the voluntary measures: a preventive power of attorney or a self-appointed curatorship put in place in time can avoid an entire procedure. If an old declaration already exists, the concrete step is to request the review, which triggers a one-year deadline instead of waiting up to six.
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