Recently we talked about the incapacity procedure and how it is increasingly used to protect our elders in case that, when they reach a certain age, their ability to fend for themselves and make decisions in their own interest becomes a complicated task.
We also analyze the requirements that must be met, as well as some particularities of incapacity applicable to the case of Catalonia.
It is a measure that must necessarily be approved by a judge and that, in any case, is reversible and adaptable, involving a limitation of the capacity to act of people only in the areas in which they need it.
In today’s post we will focus on another aspect of incapacity: Who can be the guardian of the person declared incapacitated, either totally or partially, and what are his or her duties and obligations?
Let us remember that the figure of incapacity is a way focused on the protection of the incapacitated person himself, who sees his capacity to act relegated in the aspects in which he needs it in favor of a guardian who acts on his behalf.
In this sense, all persons who are in the full exercise of their civil rights and who do not meet any of the legally established causes of inability to act may be guardians.
Likewise, legal entities that are not for profit and whose purposes include the protection of minors and disabled persons may also be guardians.
How is the guardian of the incapacitated person appointed?
As occurs when it comes to determining the degree of incapacitation or modification of the capacity to act of the person who is the subject of this procedure, it will be the judgment issued by the competent judge -in this case, that of the Court of First Instance of the place of residence of the person whose capacity is to be modified- the truly determining element when discerning the system of guardianship and trusteeship to be applied to the incapacitated person.
The future guardian -whether appointed in a court decision or in a resolution resulting from a voluntary jurisdiction proceeding- is obliged to appear before the Court on the date set for the formal acceptance of the guardianship position, at which time he/she will be considered responsible for the proper exercise of his/her position, always with the protection of the incapacitated person in mind.
From this appearance is born a new document, called the act of acceptance of office.
This, together with the testimony of the sentence, must be sent to the Civil Registry.
Once the guardian or conservator has been ‘invested’, this situation can only be appealed, maintaining, in any case, the precautionary measure of appointment of a legal guardian.
If necessary, the judicial examination and forensic recognition tests must be retaken before the competent Court.
What are the duties of the guardian or conservator?
The main obligation of the guardian or conservator is to look after the interests of the incapacitated person who has been placed in his or her charge.
For this, the first step after the acceptance of the position is that the guardian carries out an initial inventory of the patrimonial situation of the ward -both assets and liabilities-, as well as an annual rendering of accounts, and the final rendering of accounts according to the terms established in the sentence, which must be approved by the competent judicial authority.
These inventories and rendering of accounts must include a detailed statement of assets and income.
A report on the social situation of the ward must also be submitted.
It is important to know that it is possible to practice expert witnesses on the inventories and renditions.
In the case of the Civil Code of Catalonia, the request for independent audits is foreseen when the annual gross income of the ward exceeds 100,000 euros or when he/she generates a periodic income of more than 7,500 euros per month.
In addition, there is an obligation -both in the Spanish Civil Code and in the Catalan Civil Code- that, in case the guardian intends to carry out patrimonial acts of certain transcendence for his or her ward -for example an alienation of assets-, a prior judicial authorization is required.
Finally, whenever the guardian fails to perform his or her duties properly, he or she may be removed from office.
In my experience, this tool can bring a great deal of peace of mind to families, as well as to the sick person, who can be provided with the legal procedure for his or her incapacitation in case it becomes necessary during his or her lifetime.
Contrary to the relatively bad reputation that this figure traditionally carries, it should not be forgotten that it is a procedure increasingly used by families to protect people and their assets, especially in cases of dependency of our elders due to diseases such as Alzheimer’s disease.
Statistics reveal that this type of requests have increased exponentially, tripling the number of cases in the last decade.
In addition, 70% of the cases are procedures related to people with dementia, Alzheimer’s in most cases. If you need help in a disability proceeding or want advice on legal and tax planning for you or your family, please contact us for a no-obligation consultation.
