It has been a while since I last published a post for CENIE, this project that has become an essential reference for understanding the ageing process in which we are immersed, and its consequences for society.
What is undoubtedly important is that our reflections serve to make visible and raise awareness of the need to adopt the appropriate measures to ensure the well-being of the elderly and their families.
As the wise saying goes, "the years do not pass in vain" and sooner or later our organism will suffer and the decline of our faculties will be a reality whether we like it or not, which will inevitably affect our quality of life.
The function of law is to offer the appropriate alternatives for personal, family and social reorganisation in a stage of history defined by the increase in the number of elderly people, promoting the reform and adaptation of traditional legal institutions to the new times.
In this sense, the legislator undertook the reform of the legal regime of support figures in decision-making for vulnerable people, in compliance with the provisions of the International Convention on the Rights of Persons with Disabilities approved in New York on 13 December 2006. Spain's ratification on 23 November 2007 means the incorporation of the aforementioned norm as a fundamental precept, assuming the obligation to adapt the legislation on the matter to its principles.
There is no international instrument on the rights of the elderly, as there should be, and therefore, by analogy, the provisions for persons with disabilities are applicable, thus extending their effects to all situations of vulnerability due to illness or impairment for whatever cause, birth or age.
As far as the principles of the Convention are concerned, they are fully applicable to the elderly, and it can even be affirmed that, in the event that a specific instrument were to be enacted in the near future, its basis and content would not be very different in essence, albeit with certain nuances.
The result is Law 8/2021 reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity of 2 June 2021.
The principles of the Convention focus on respecting the person's will and preferences, avoiding substitution in the decision-making process, whenever possible, and whenever the situation of the affected person allows it. Above all, the well-being of the person is always paramount, and only in exceptional cases will support measures have representative functions.
To the rehabilitative medical model inspired by Article 49 of the Spanish Constitution, the Convention, taking into account the evolution of the times, adds the unsuitability of the social environment as an aggravating factor in the effects of disability and loss of faculties due to age.
The most important changes are the suppression of the judicial procedure for the modification of capacity, because it is not a matter of incapacitation but of enabling, of providing the necessary support for the person to live with autonomy.
Consequently, guardianship as a permanent protection measure, which meant the legal representation of the affected person, is abolished. The curatorship as a figure of complement and assistance is the general rule, exceptionally endowing it with a representative character in cases of serious affectation.
Preventive Law acquires relevance as an instrument of manifestation of the will and design of the form of care of the person and administration of the estate in a future situation of loss of faculties.
Let us not forget, and it is worth repeating a thousand times, that the person is the raison d'être of Law, that institutional meaning is derived from his or her Dignity as a rational being, capable of understanding and wanting. Respect for oneself and for others, the supreme value of the legal system, to which the public authorities and society are subject, which Article 10/1 of the 1978 Constitution formulates as a declaration of principles.
The Constitutional Court distinguishes two aspects of Dignity, one identified with physical integrity, and the other with fundamental rights, and the free development of personality through the exercise of the capacities inherent in human nature.
Freedom, proclaimed as a right in Article 17 of the Constitution, is the essential driving force in this process, in its two aspects: public and individual. When we refer to the individual, we are interested in individual liberty, which takes the form of private autonomy or the power of self-regulation of one's own affairs, the sphere of personal decision making, freedom of choice as the exercise of responsibility, which together with Justice and equality are the highest values of the Spanish legal system, as stated in Article 1 of the Constitution.
Article 14 contemplates equality with a double meaning, as a principle as the effective position of all individuals before the law; and, as the right to non-discrimination for whatever reason, including age. In the present case, it refers to the stereotype of old age as a sign of inferiority and uselessness, a cause of isolation and exclusion from society.
Fundamental Rights are not established by law, they are prior to the existence of a person and inherent to his or her Dignity, and as such are recognised in the 1978 Constitution.
Apart from the Civil Code, the Reform affects different laws. We will be commenting on these changes, because although this issue does not arouse immediate interest in some people, it is important to make it visible, because, whether we like it or not, faculties are lost to a greater or lesser degree as the years go by, and this circumstance will affect us all.