- Law 8/2021 of 2 June reforms the Civil Code and procedural law to support persons with disabilities in exercising their legal capacity.
- It gives priority to voluntary measures, such as preventive powers of attorney and self-appointed guardianship, and strengthens de facto care.
- It enters into force three months after publication and affects family and succession planning.
On 3 June 2021 the BOE published Law 8/2021 of 2 June reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity. It brings Spanish law into line with the 2006 International Convention on the Rights of Persons with Disabilities and represents a change of model: the person with a disability is no longer substituted and instead receives the support needed to make their own decisions. It enters into force three months after its publication.
For families the change is profound: guardianship of adults is abolished, as are extended and reinstated parental authority, and prodigality disappears as a separate institution. In their place, the Civil Code regulates support measures, notably those a person can adopt in advance. It affects anyone with an adult child with a disability, anyone planning their succession and anyone who wants to provide for what would happen if they needed help in future.
From substitution to support
The axis of the new regulation is no longer the incapacitation of someone considered insufficiently capable, but support for whoever needs it. Support is a broad term: from accompaniment and technical help in communicating decisions to, only when there is no other way, representation. Anyone who needs it may benefit, even without an administrative recognition of disability, and the court procedure can only determine the acts for which support is needed, never declare incapacitation or deprive a person of rights.
The main court-ordered measure becomes the curatorship, assistive and not representative in nature, save for exceptions. Court measures will be reviewed periodically within a maximum of three years or, in exceptional cases, up to six. And guardianship is reserved for minors who are not under parental authority. The message is that legal capacity is presumed and that limitations must be proportionate and necessary.
Voluntary measures and de facto care
The law gives preference to measures taken by the person themselves. Preventive powers of attorney and mandates take on special importance, granted before a notary and able to provide safeguards, control mechanisms and review periods, together with self-appointed curatorship, by which someone designates in advance who they want to support them. The notary notifies the Civil Registry of the measures, so they are recorded in the grantor’s individual entry.
De facto care, the situation in which a relative looks after and supports the person without a court appointment, is strengthened as a support institution: it stops being provisional when it proves sufficient and adequate. If the carer needs to act as representative for a specific act, a court authorisation for that case will suffice, with no need to open a general procedure. The law also regulates the protected estate and the court-appointed defender for conflicts of interest.
What to review
Those with relatives with disabilities under guardianship or extended parental authority should find out how those situations will be adapted to the new model under the law’s transitional provisions. And all of us can consider granting a preventive power of attorney and, if desired, naming the person we trust, with the safeguards we choose, while we have full capacity.
In family businesses and succession planning, it is worth providing for what would happen if a partner or director needed support: who decides, within what limits and how business continuity is ensured. Wills and family agreements can be reviewed with a notary and lawyer to fit the new framework. This information is general in nature and does not replace advice on each case.
The law changes the question: it is no longer who replaces the person, but what support they need to decide for themselves.
This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.
