In modern societies, life expectancy has fortunately grown exponentially in recent decades.
This is undoubtedly great news for all of us, but it also brings us face to face with complications, such as the possibility of a certain loss of self-governing capacity on the part of our elders and the need to adopt measures to adapt to this situation.
As of today, Spanish citizens still find it difficult to initiate disability proceedings for a family member.
However, statistics reveal that these types of applications have increased exponentially, with the number of cases tripling in the last decade. This is a real step forward, both for family members and for our elders, who otherwise may find themselves unprotected against the contingencies of life at a certain age -in 70% of the cases these are procedures related to people with dementia, especially Alzheimer’s disease-.
The key is to understand that these types of proceedings exist precisely to protect people who need it: through a judicial proceeding for modification of capacity or incapacity proceedings it is possible that a judge declares a person incapable – also partially – so that another person can take charge of making certain decisions and, in general, act on his behalf to ensure his welfare, becoming his guardian. This is a procedure increasingly used by families, the purpose of which is to protect individuals and their assets, justified by the absence or limitation of the incapable person’s discernment. You may be interested in… “Incapacity proceedings in Catalonia: who can be a guardian and what are the requirements?”
Disability proceeding requirements
To begin with, it is important to emphasize that the incapacity procedure is a matter dealt with in the courts and that it serves to limit the capacity to act of persons only in the areas in which they need it.
In addition, it is a reversible process that can be adapted to the circumstances at any given time. In an incapacitation process, the judge examines the alleged incapacitated person and also speaks with his or her next of kin.
In addition, he/she requests that he/she be seen by an expert in the field (a forensic psychiatrist), since without this expert opinion the incapacitation cannot be agreed upon.
The first thing to do is to assess whether the requirements of the law and case law are met for it to be necessary to limit the person’s autonomy. The Spanish Civil Code requires that for the incapacity procedure to be effective, the person must be affected by an illness or impairment -physical or psychological-, of a persistent nature, which prevents him/her from totally or partially governing him/herself. By persistent or permanent nature, it is understood that the end of the disease or impairment is not foreseeable, and that is something that can be determined by the relevant medical reports.
In addition, since this is a procedure for the protection of the person, it is necessary that the person is in a situation of unprotected status. In this sense, the affected person may have adopted preventive measures -preventive powers of attorney-, so that the procedure of modification of the capacity becomes unnecessary because there would not exist a situation of need of protection (solved in advance).
Another alternative mechanism to incapacitation is the figure of the assistant provided for in the Catalan Civil Code.
By means of this alternative, a person of legal age who needs to take care of himself or herself or his or her assets -due to a non-incapacitating diminution of his or her physical or mental faculties- can request the judicial authority to appoint an assistant, through a voluntary jurisdiction procedure.
In Catalonia, the ICASS has published a Protocol for the application of screening criteria before initiating a process of incapacitation, which sets out the requirements and reports that must be submitted to the Prosecutor’s Office in order to initiate the incapacity process.
Who is entitled to initiate disability proceedings?
Contrary to what it might seem, it is increasingly common for patients with dementia-related or other diseases themselves to express their wishes for the future in advance (whether they want to receive medical treatment, how to distribute their assets… and whether they want to be declared incapacitated under certain circumstances) through so-called advance directives.
This instrument also relieves the families, who do not feel guilty for taking this step, as they do so in compliance with the patient’s own wishes.
In case the patient himself does not demand it, incapacitation can be requested by his direct relatives (ascendants, descendants, siblings, spouses or domestic partners) but also by doctors, social workers or neighbors who consider that a person is not in full capacity and may need this type of protection.
To do so, they can go to the public prosecutor’s office or to the courts to sue for incapacitation.
In addition, it is important to know that, in order to guarantee the right of defense of the person whose capacity is to be modified, he or she will be defended by the Public Prosecutor’s Office or, in the event that the latter initiates the procedure, by a court-appointed attorney.
How does the disability procedure work?
Such a procedure can take 5 to 6 months in the best cases, and up to one to two years in the worst cases.
The national average is around 8 months.
This is not in the patient’s favor, considering that in about half of the cases the application is initiated because the patient has lost his or her faculties and needs to be admitted to a nursing home, so they want to sell their home to meet this cost.
Having opted for incapacitation, a key point is that, as this is an unavailable matter, once the lawsuit has been filed, the waiver, the settlement and the transaction will have no effect: the withdrawal will require the consent of the Public Prosecutor’s Office.
As we pointed out in reference to the requirements, during the proceedings, the Civil Procedure Act states that there are two tests that must be carried out in these proceedings: the judicial examination and the forensic examination . Thus, the judge competent to resolve the matter must personally examine the person whose capacity is to be modified, and will require at least an expert report from the forensic doctor assigned to the court.
Finally, as for the sentence, the judge will agree on the recognition or not of the capacity, and must state the degree of incapacitation or modification of the capacity, total or partial, its extension, its limits and the system of guardianship or trusteeship. It is necessary to include the specific acts for which the person will need representation or complementary capacity, so that the sentence is perfectly adapted to the specific case.
The tendency that the United Nations Convention on the Rights of Persons with Disabilities reflects is that of guardianship, which respects more the autonomy of the person, but the reality is that, in the case of the elderly, the rate of total incapacity exceeds 90%, taking into account the improbability of recovery and the forecast of further deterioration. If you need legal assistance for an incapacitation proceeding or want more information, do not hesitate to contact me.
