Law 8/2021 support measures

Law 8/2021 support measures - Tribuna Abierta, CENIE

The reform provides for three types of support measures for vulnerable adults according to their nature: voluntary, legal or judicial, and de facto.

Voluntary measures are those foreseen by a fully capable person in the event of a loss of faculties in the future, being preferential to all other measures of a legal and judicial nature, in accordance with the order of priority established in article 250 of the Civil Code, i.e. they are binding on the judge, thus complying with the principles of the UN Convention which, above all, considers respect for personal wishes.

The legal or judicial ones, curatorship and legal guardianship, will be agreed by the judge in the absence of voluntary provisions, or when these are ineffective.

The curatorship is the legal figure of permanent support to complement the capacity exclusively in those acts that the pronouncements of the judgement recognise, after justification, that the affected person cannot carry out responsibly. 

Only exceptionally, if the disability is severe and prevents comprehension and reflection, the guardianship will be representative, i.e. it will include the power to act in the name and on behalf of the person in need of assistance.

The legal guardian is the legal figure of a provisional nature foreseen for those cases in which the person providing the support cannot carry out his or her function for whatever reason, a conflict of interests, the processing of an excuse formulated by the guardian if the judge deems it appropriate, or when in the judicial processing of the application for the adoption of support measures, the need to proceed with the administration of the assets is appreciated.  Or in those cases in which, for whatever reason, the temporary establishment of one or more support measures is required.

Finally, guardianship is the de facto measure exercised by the person who provides the vulnerable person with the attention and care he/she needs to live with dignity and avoid abandonment, without there being any voluntary or judicial provisions to that effect.

Any person of legal age can make arrangements for all matters relating to their personal care and administration of their assets in the event of future incapacity. The law does not establish specific measures; everyone will know which ones suit their circumstances and needs, making possible an à la carte design that adapts to the particular reality of the person making the disposition.

Two figures are legally foreseen, as a channel for those who wish to express and record their wishes and preferences for the management of their future vulnerability.

The preventive appointment of a guardian, self-guardian, is one of the alternatives, by virtue of which a natural or legal person, or two or several persons may be appointed to exercise the necessary support simultaneously and jointly or successively as substitutes. It is also possible to delegate to the spouse or another person the choice of the future guardian from among the specified candidates.

In addition to the appointment of a guardian, all aspects of personal care and attention can be arranged, including all the daily activities necessary to lead a dignified life: food, health, medication, hygiene, which are provided in the private residence or in a specialised centre if necessary. 

Economic resources are of the utmost importance; access to services in quantity and quality depends directly on the socio-economic level, which is why the correct administration of assets is essential.

In most cases, a retirement benefit, widowhood, etc., is the only income available, in others there will be an estate that requires management with a certain degree of specialisation or even professionalism, in order to obtain the maximum profitability that provides liquidity, preventing the conservation of assets from becoming a burden that harms the well-being of the vulnerable person,

Depending on the nature of the acts involved, the administration of assets is either ordinary or extraordinary. The former concerns the satisfaction of everyday needs: housing, food, clothing, medicines, health, hygiene, pocket money. The amount of these disbursements is adapted to the amount of the periodic and fixed personal income of the person concerned. The curator or guardian is not obliged to pay them at his or her own expense, and in the event of lack of liquidity, he or she is limited to requesting the appropriate assistance.

It may be that circumstances make it necessary to dispose of some asset, for example to cover the costs of a residence, or simply as a means of profitability, undertaking acts of extraordinary administration that require judicial authorisation after justification of urgency, necessity and usefulness.

The preventive power of attorney is another instrument for anticipating support. A power of attorney can be granted with a subsistence clause in the event of supervening incapacity, or an exclusive power of attorney in the event of the aforementioned circumstance.

Both the self-authorisation and the preventive power of attorney must be executed in a public document before a notary and recorded in the margin of the declarant's or principal's birth certificate for the purpose of publicity vis-à-vis third parties, i.e. so that the voluntary provisions regarding support measures are known at the appropriate time and implemented with due effectiveness.

In both cases, we must not forget the control bodies, such as the formalisation of the inventory of assets, and the rendering of accounts as often as the interested party deems appropriate, normally annually, and the general account upon termination of the guardianship, or the verification of certain acts of administration. The most logical step would be to present the accounts to the court so that the Public Prosecutor's Office can review the operations and issue the corresponding report and the judge can approve them.