In this article we are going to talk about conservatorship.
The conservatorship is the institution on which the protection of the person with disabilities is based.
It is regulated in article 268 et seq. of the Civil Code, modified by Law 8/2021.
What is Conservatorship?.
Guardianship is established with the objective of intervening sporadically in certain acts of a person who cannot take care of themselves.
With the implementation of Law 8/2021, of June 2, and its entry into force at the beginning of September 2021, civil and procedural legislation is reformed. This new legal system has the purpose of updating the paradigms regarding the legal capacity of people with disabilities.
In the reform of the Civil Code, the concept of judicial incapacitation is replaced or complemented by a system of support measures for people with disabilities in the exercise of their legal capacity. People with disabilities are recognized as subjects with legal capacity on equal terms with others.
Conservatorship as the Main Support Measure for Persons with Disabilities.
In the Civil Code, guardianship is presented as the main support measure. This instrument is applied when voluntary measures are not sufficient and continued assistance is required. It is established by decision of the court who will establish the acts in which support will be provided and, exceptionally, those in which it will be represented in decision-making.
Constitution of the Guardianship.
When there is no other sufficient support measure for the person who has a disability, guardianship is instituted by reasoned resolution of the judicial authority. In those cases that require it, this resolution will establish by said judicial authority the specific acts of representation of the curator. Said resolution cannot include in any case the mere deprivation of rights.
The judicial authority will determine the acts for which the person requires assistance from the curator in the exercise of his legal capacity, taking into account his specific support needs. Only in exceptional cases in which it is essential due to the circumstances of the person with a disability, the judicial authority will determine in a reasoned resolution the specific acts in which the curator must assume the representation of the person with a disability.
The acts in which the curator must provide support must be set out precisely, indicating, where appropriate, which are those in which he must exercise representation. The curator will act under the criteria established in article 249. In no case may he include the mere deprivation of rights in the judicial resolution.
Who Can Be Conservators for conservatorship?.
The following may be curators:.
- Any person of legal age suitable for the function: Persons of legal age who, in the opinion of the judicial authority, are suitable for the proper performance of their function.
- Foundations or non-profit legal entities that work in the assistance of people with disabilities: Likewise, foundations and other non-profit legal entities, public or private, whose purposes include the promotion of autonomy and assistance, may be curators. to people with disabilities.
They cannot be curators, Restrictions to Be a Curator:.
- Those who have been excluded by the person who needs support.
- Those who, by judicial resolution, were deprived or suspended in the exercise of parental authority or, totally or partially, of the rights of custody and protection.
- Those who have been legally removed from a previous guardianship, conservatorship or guardianship.
The judicial authority may not appoint the following people as curator, except in duly motivated exceptional circumstances:
- Whoever has been convicted of any crime that gives reason to assume that he or she will not perform the guardianship well.
- Whoever has a conflict of interest with the person who needs support.
- To the administrator who has been replaced in his administrative powers during the processing of the bankruptcy procedure.
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