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Can I request a family member's disability?

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Can I request a family member's disability?

Civil incapacity is a legal situation in which a person cannot govern his person or property in accordance with his physical, mental or sensory situation and which determines the need for another person, guardian, curator or legal counsel to look after his civil situation. The incapacity of a family member is one of the cases in which the alleged incapacitated person's own family initiates legal proceedings to have the incapacity officially declared.

In what cases can a person be declared unfit?

As established in our Civil Code in articles 199 and following, one of the main requirements for a person to be declared incapable is that he or she suffers from a significant and persistent illness or deficiency (physical or psychological) that prevents him or her from governing himself or herself. As our specialist in the field explains, only a judge can declare a person incapacitated by means of a court ruling and, if necessary, establish the specific scope of the incapacity, whether total or partial.

We have to take into account that the incapacity is presumed as long as there is no sentence that says otherwise, so the incapacitation will have to be proved before a judicial procedure and always with a judge's sentence.

 Depending on the extent of the incapacitation, it will affect the ability or not of the person unable to stand on his own feet, and needing more or less the protection of another person.

We understand that through this type of procedure, the relatives of the incapable person can protect him/her and prevent acts that could turn against him/her.

Which family members can apply for judicial incapacitation of the incapable?

First of all, the person concerned can himself institute legal incapacitation proceedings, if he anticipates his situation by using his mental faculties in good condition. In this case, the person can also personally choose who will be his or her guardian or conservator and the judge will take his or her decision into consideration. Secondly, the relatives of the incapable person, the descendants, ascendants and siblings. Thirdly, the spouse or similar of the incapable person.

What types of persons can take care of the incapable person after he has been judicially incapacitated?

  • The guardian. This is the person who represents the incapacitated person for legal purposes. His or her appointment is based on the interest the individual has in the incapacitated person.
  • The conservator. This is the person who supplements the incapacitated person's capacity when deemed necessary by the court. In these cases the incapacitation is not total, but partial.

  • The judicial defender. He intervenes when there is a conflict of interest between the person under guardianship or curatorship and the one who is exercising it.

What evidence is required to successfully institute judicial incapacitation proceedings?

It is essential to hear the alleged incapacitated person, any direct witnesses, and the statements of the next of kin. And above all to the medical expert reports that may be attached, as well as to the forensic medical examination.

What does the judicial procedure consist of?

The process of incapacitation will be initiated by the presentation of a lawsuit signed by a lawyer and a procurator, detailing the reasons why the applicant understands that his or her relative should be incapacitated, providing the relevant evidence to establish the scope and degree of incapacitation.

After receiving the application, the court will summon the interested parties to respond to the legal complaint and set a date and time for the oral proceedings.

What does the most recent case law establish?

The most recent jurisprudence warns that the sentence of incapacitation has to make a "tailor-made suit", determining the areas and degree of disability in the interest and for the protection of the affected person, determining which is the regime of custody or guardianship to be designated depending not only on his illness or physical/psychological deficiency, but also on his family, economic, social circumstances, etc. Similarly, the need for greater protection and, in general, respect for the rights of persons with modified judicial capacity is also reflected in the recent changes introduced by the criminal legislator.

Contact us, and our lawyers specializing in family law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Madrid and Reus.