The effectiveness of preventive law: preventing and avoiding conflicts

In a digitized society like ours, characterized by immediacy in the media and social networks, it is necessary, in order not to make mistakes in our decisions, to discern what is convenient and what is harmful. The same solution may be the right one in one situation and a mistake in another, depending on the objectives the person has set.

To focus the issue, we distinguish three concepts: information, opinion, and knowledge.

Information is “the action of informing or being informed,” which is obtained from the analysis of objective facts that can be verified without adding points of view; in Law it is the “legal inquiry of a fact.”

Opinion is the “formal judgment on matters of opinion.” To opine is “to form a view or judgment on something,” including the personal analysis of the person transmitting it, with their conclusions.

Knowledge is the “action of knowing, understanding, intelligence, sense or reason,” and to know is “to acquire the notion of things through the exercise of understanding.”

In the Spanish legal system, the desires and preferences expressed by a person in the exercise of their autonomy of will prevail.

Law 8/2021, on supporting persons with disabilities in the exercise of their legal capacity, is the result of the adaptation of Spanish Law to the principles of the International Convention on the Rights of Persons with Disabilities of December 13, 2006, which, in its Article 2, establishes respect for the preferences of vulnerable people as the supreme value. In this regard, Article 255 of the Civil Code regulates the voluntary provision of supports and their precedence over those of a legal or judicial nature, which will only be adopted if such supports have not been foreseen or are harmful to the well-being of the affected person.

It is necessary to reflect and discern among the alternatives that Law offers the one that is adequate to our circumstances and interests, requiring at least a basic notion of concepts or at least the awareness of their existence, so as to guide ourselves correctly through the inevitable passage into the legal world, difficult to understand for laypeople due to its language.

To prevent means “to prepare, to arrange in advance what is necessary for the achievement of an end; to know beforehand of a harm or danger; to avoid or prevent something; to warn, to inform, to advise; to anticipate an inconvenience or difficulty; to get ready, to prepare for something.”

The duty of the legal professional is to ensure that everything is in order, confirming that no part of the content of a contract or document compromises the rights and interests of the person who has entrusted us with advice on a matter.

This work of accompaniment and guidance requires a relationship of trust from the client toward the professional, and from the latter dedication, attention, consideration, and patience, being aware that, with well-executed work, we will avoid legal problems that are difficult and complicated to resolve, saving time, money, and resources. The function of Preventive Law is to anticipate conflicts by avoiding them, allowing everyone to gain peace of mind and avoiding litigation before the overburdened Administration of Justice.

Preparing for the future in the event of a loss of faculties associated with age means ensuring the fulfillment of one’s wishes and will in that difficult and delicate circumstance, in which it will not be possible to decide responsibly, providing guiding criteria for personal care, asset management, and the allocation of economic resources to cover expenses—financial health in its full extent.

The preventive facet of Law is as important as it is unknown and undervalued, especially because of its usefulness in avoiding conflicts and guaranteeing the well-being of people and families in delicate situations of vulnerability.

The verb to prevent has the following meanings: “to prepare, to arrange in advance what is necessary for the achievement of an end; to know beforehand of a harm or danger; to avoid or prevent something; to warn, to inform, to advise; to anticipate an inconvenience or difficulty; to get ready, to prepare for something.”

To know the scope of the act or agreement we are about to carry out, being previously informed of its legal nature and effects, because every decision has favorable or harmful consequences.

To anticipate harm or danger, inconvenience or difficulty, avoiding damage or loss, assessing possible and probable risks about which the legal professional warns, informs, and alerts.

In most cases, these are not evident in the literal wording of the agreement: they appear hidden or concealed in misleading and confusing clauses or stipulations that induce error, resulting in problems, damages, and unpleasant situations.

To get ready, to prepare for something, is the definition of the essential concept of Preventive Law. Instruments such as the designation of support measures, the protected estate, the will, or advance directives offer the possibility of outlining personal care, health, asset management, or the destination of property after death, that is, preparing the regulation of a future situation of vulnerability that prevents decision-making with freedom and responsibility.

The duty of the legal professional is to ensure that everything is in order, confirming that no part of the content of the contract or document compromises the rights and interests of the person.

This work of accompaniment and guidance requires a relationship of trust from the client toward the professional, and from the latter dedication, attention, consideration, and patience, being aware that, with well-executed work, we will avoid legal problems that are difficult and complicated to resolve, saving time, money, and resources.
Legal professionals are custodians of the well-being of individuals and of society in general.

The function of Preventive Law is to anticipate conflicts by avoiding them, allowing everyone to gain peace of mind and avoiding litigation before the overburdened Administration of Justice.

The preventive aspect involves all areas of Law, although in the space so kindly provided by CENIE we refer to older people and their families, insisting on the anticipation of situations of vulnerability associated with age. I hope to spark your interest, dear reader.