- The draft moves from replacing the person with a disability to supporting them in their decisions, respecting their will.
- Preference is given to preventive measures, such as the powers and mandates a person can grant before needing help.
- It amends the Civil Code, the Civil Procedure Act, the Mortgage Act and the Civil Registry Act, and touches succession and contracts.
On 21 September 2018 the Council of Ministers took note of the report on the draft law reforming civil and procedural legislation on disability. The reform affects the Civil Code, the Civil Procedure Act, the Mortgage Act and the Civil Registry Act, and lays the foundations for changing the current system, in which substitution by court order in decisions affecting persons with disabilities predominates.
The new model is based on respect for the will and preferences of these persons, who as a general rule will be the ones to make their own decisions. It is a fundamental change in family and personal law, with direct effects on how families plan the protection of a child, a spouse or a parent with a disability.
From substitution to support
The central idea is support for those who have some difficulty exercising their legal capacity, traditionally called capacity to act. Support ranges from friendly accompaniment or technical help in communicating decisions to, where necessary, decisions delegated by the person themselves. Judicial substitution, with incapacitation and guardianship as the usual figures, ceases to be the rule.
The reform responds to the International Convention on the Rights of Persons with Disabilities, signed in New York in 2006, which proclaims that these persons have legal capacity on an equal basis with others and obliges States to provide the support they need. Spain had to adapt its legislation since 2011, and the disability that had remained unregulated in line with those principles was intellectual disability.
Preventive measures and support figures
The draft gives preference to preventive measures, which the person concerned can take in anticipation of a future need for support, such as preventive powers of attorney and mandates. It also strengthens external measures such as de facto guardianship, exercised naturally by a relative without court involvement. Curatorship and the judicial defender are also regulated, and guardianship is reserved for adults not protected through parental authority.
The reform also affects private international law, acts relating to nationality, marriage and filiation, and some rules of succession and contract law. That is why it matters to families and to those planning their assets: the instruments for protecting a vulnerable person change, as does the validity of certain acts granted by them.
What to review
Until the text becomes law, the current rules remain applicable, and nothing being planned today is invalidated. Even so, it is worth knowing the direction of the change: anyone who wants to set out how their affairs will be managed if they need help in the future can study preventive powers of attorney and other planning instruments, before a notary and with advice.
Families with a member with a disability can review their asset and succession planning, including existing figures such as the protected estate, and how they would fit with the new model. Each case is different and should be analysed with a lawyer or notary before taking decisions.
The law is adapting so that the person decides with support, rather than others deciding for them.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
