Projects

Elderly people have an increasing weight in the population structure and will continue to do so in the coming years. In complicated situations derived from cognitive deterioration or loss of abilities caused by age, incapacitation or judicial modification of capacity is presented as a solution that guarantees both the rights of the person and the interests of family members.

In recent years, economic growth and the prolonged improvement in life expectancy have considerably increased the population ageing of practically every country in the world. This increase is also present in Catalonia, where the ageing index has increased in recent years -according to IDESCAT data - and it is expected that it will continue to increase for at least the next 15 years.

It should be noted that having an increasingly important population of elderly people represents one of the great human achievements of contemporary history, since life expectancy always has a positive correlation with the standard of living.

Unfortunately, population ageing also forces many families to make decisions to face and prevent the consequences of cognitive decline and loss of capacity of close family members and loved ones.

The incapacitation or judicial modification of capacity is a legal procedure that aims to guarantee the rights and well-being of those who, due to their physical or psychological conditions, are not in a position to make certain decisions, administer their assets or take care of themselves and need a third person to complement or assume this responsibility. It is a judicial procedure where the assistance of a lawyer specialized in the matter is always mandatory and where, finally, a judge agrees on the establishment of the most suitable protection institution, that can be guardianship (“tutela”) or curatorship (“curatela”).

Thus, the judicial incapacitation procedure itself is as important as the institutions for the protection of the person regulated in the Catalan Civil Code, since they are the ones that will end up determining the regime in which the persons designated as guardians or curators must ensure the rights and interests of the incapable person.

Guardianship (“tutela”) is the institution that protects people who cannot take care of themselves and who are incapacitated by a court ruling. This protection covers both the personal and patrimonial scope of the ward, so the guardian becomes the legal representative of the person placed under guardianship, takes care of him or her, manages and defends the assets and patrimonial interests and exercises his or her rights.

It is important to remember that the closest relatives - spouse, descendants, ascendants and siblings - are lawfully bound to promote the constitution of guardianship, from the moment they know about the situation of lack of protection of the incapable person and that, if they do not do so, they shall be liable for any damages that may have been caused by not promoting it before.

On the other hand, curatorship (“curatela”) is the applicable protection institution when a person retains the ability to act, since the degree of disability is slight and allows the person to take care of him or herself. In these cases, the curatorship is constituted because the law considers that, for certain acts, a complement of capacity is required, which must be given by the curator through its assistance. Therefore, curatorship is not a case of legal representation, since the act in question will be carried out by the person placed in curatorship, and the curator will simply assist.

Guardianship and curatorship are the main institutions for the protection of the person, but the Catalan Civil Code regulates others that are just as interesting and involve less interventionism, such as, in fact, the person acting as de facto guardian (“guarda de fet”), assistance (“assistència”), protected assets (“patrimony protegit”), the judicial defensorship (“defensor judicial”) or the mere granting of a notarial power of attorney in anticipation of future situations.

The particularities of each case and the needs of each person require a personalized solution that respects both the rights of the person affected and the interests of family members, which makes it essential to have the comprehensive advice of specialized lawyers.

Badia)advocats provides complete advice to families and process each judicial procedure for modifying capacity with absolute respect for the person who needs it, seeking the solution that best suits in each case and allows the person to develop its own capacities to the maximum.