Assistance for persons with disabilities (formerly known as legal incapacitation) has been reformed under our legislation, not only from a terminological standpoint, but also with the aim of adapting this legal institution to the actual needs of the individuals who require it.
Article 226 of the Civil Code of Catalonia establishes that any adult may request the appointment of one or more persons to assist them in complementing their legal capacity when it has, in some way, become impaired.
Likewise, where the person concerned lacks the capacity to make such a request, certain individuals—generally their closest relatives—may apply on their behalf, provided that no preventive assistance arrangement has previously been established and there is no valid power of attorney granting the necessary support.
Regarding the procedure for its establishment, assistance may be formalized either by means of a notarized public deed or through the legally established judicial process.
The purpose of this reform was to ensure that the institution of assistance reflects the dignity of the individual, placing particular emphasis on respecting their rights, wishes, will and personal preferences.
In the following paragraphs, I will examine some of the most relevant aspects of this legal mechanism, particularly its practical usefulness. It enables individuals with diminished capacity to carry out the most significant acts affecting their legal and personal affairs while also providing invaluable support to their family members in offering the assistance they require.
The scope of the assistance, which must be defined in the court decision or public deed establishing it, will naturally depend on the extent to which the person’s capacity has been affected.
This support makes it possible to perform everyday activities and procedures that may appear routine, yet become essential in situations involving limited capacity. These include, among others:
- Managing everyday financial matters, such as making payments, reviewing invoices and managing bank accounts.
- Handling administrative procedures, including applying for benefits or pensions, obtaining recognition of dependency status, and, more generally, dealing with public authorities.
- Supervising matters related to the assisted person’s healthcare, including monitoring medication schedules, arranging medical appointments and attending to their healthcare needs in general.
- Protecting the individual from abuse by third parties, preventing others from taking advantage of their reduced capacity for improper purposes, such as fraud or financial exploitation.
As a general rule, assistance is intended to complement, to a greater or lesser extent, the legal capacity of individuals whose abilities have been diminished, always in the least intrusive manner possible. In other words, it seeks to preserve the person’s autonomy in all areas where they are still able to make and exercise their own decisions.
The judicial procedure, which is processed as a voluntary jurisdiction proceeding, is relatively straightforward. It begins with an application explaining the grounds for the request, supported by documentary evidence or expert reports where appropriate.
The court then schedules a hearing with the participation of the Public Prosecutor’s Office. During this hearing, among other procedural steps, the judge interviews the individual concerned to assess their situation and evaluates the suitability of the proposed assistant.
The court order concluding the proceedings will clearly specify the areas in which assistance or support is required, designate the person responsible for providing that assistance, and establish how it is to be implemented.
In conclusion, there should be no reluctance to initiate this type of proceeding. Besides being relatively simple, it constitutes an effective legal mechanism for supporting individuals whose legal capacity has become limited.
Mariano Martínez de Azagra Calonge
Partner – Axis Legal Lawyers