Civil Judicial Incapacity

Important: The legal framework governing legal incapacitation has changed. This article was published under the previous framework for civil legal incapacitation. Since then, the regulations have changed significantly with the enactment of Law 8/2021, of June 2, which reformed civil and procedural law to support people with disabilities in exercising their legal capacity. To assess a current situation, it is necessary to analyze the applicable regulations and the circumstances of each case. To do so, you can contact IN DIEM Abogados.

Legal Capacity and Capacity to Act

From the moment we are born, all people possess legal capacity—that is, the capacity that allows us to hold both rights and obligations, and to be parties to legal relationships. We possess this capacity regardless of our age and physical or mental health, and regardless of our marital status.

Notwithstanding the foregoing, legal capacity should not be confused with the capacity to act or to exercise rights, since, unlike the former, the latter is the capacity that individuals possess upon reaching the age of majority and that enables them to perform legal acts.

In accordance with the above, we specify that only those subjects with capacity to act can exercise rights and fulfill obligations they hold, not merely those with legal capacity.

Hence, an incapacitated person lacks capacity to act and, consequently, cannot personally exercise rights or fulfill obligations of which they nevertheless remain the holder. This means that a person who is only legally capable can own a home and, consequently, will hold both the intrinsic rights and obligations derived from the right of ownership. However, to exercise these rights and fulfill their obligations, they will require representation or assistance to act.

Therefore, capacity to act determines the validity of the acts performed by natural persons. Consequently, those affected by any illness or deficiency that may diminish their capacity to act will not be enabled to perform legal acts on their own, but will require the representation or assistance of a third party for such acts to be valid.

But who needs such representation or assistance to ensure the validity of their legal acts?

According to our Civil Code, minors, emancipated minors, prodigals, and persons declared legally incapacitated are individuals who cannot act on their own behalf and therefore require special protection.

People with disabilities

Article 199 of the Civil Code states that “No one can be declared incapacitated except by judicial sentence based on the causes established by Law”.

The Supreme Court states in its jurisprudence that the aforementioned precept establishes a presumption of capacity – to act – that applies to every adult, and which only disappears when the concurrence of a “persistent physical or mental illness or deficiency that prevents the person from governing themselves” is proven, as dictated by Article 200 of the same legal text.

Several ideas must be drawn from the preceding paragraph:

• Age of Majority. Legal capacity is not recognized from the moment a person is born, but rather from the moment we reach the age of majority.
• Evidence of Lack of Capacity. The capacity to act may be affected if it is proven that the conditions exist that the Supreme Court has come to consider as“an illness or disability that leads to the conclusion that a person is not in a position to manage their own affairs, administer their property, or perform the other functions expected of an average person.”
• Mandatory judicial procedure. Legal incapacity must be declared by a court judgment, since the mere finding or proof of the existence of an illness or disability—regardless of how severe it may be—does not, per se, entail any limitation on legal capacity; rather, for such a limitation or modification of legal capacity to take effect, the law requires a court judgment establishing it, following the completion of the appropriate legal proceedings for a declaration of incapacity.

Initiation of the legal incapacitation proceeding

The civil judicial incapacity procedure is the formula provided by law to safeguard the person and assets of alleged incapacitated individuals.

This type of proceeding shall be initiated directly by filing a complaint with the Court of First Instance in the place where the person alleged to be legally incapacitated resides. However, the Civil Procedure Act provides that anyone may bring the matter to the attention of the Public Prosecutor’s Office any facts that are decisive for declaring a person legally incapacitated, so that the Public Prosecutor’s Office, based on the reports or documentation provided, may file a petition for legal incapacitation when it deems there is sufficient evidence to do so.

Thus, for example, the Law states that public authorities or officials who, by reason of their duties, are aware of the existence of a possible cause for a person’s incapacity, must inform the Public Prosecutor’s Office.

In addition to the Public Prosecutor’s Office, the Law authorizes other parties to initiate this type of procedure. However, to specify who these parties are, a distinction must be made depending on whether the allegedly incapacitated person is a minor or an adult.

Persons Authorized to File a Petition for the Legal Incapacitation of a Minor

If the allegedly incapacitated person is a minor, those authorized to initiate the incapacity procedure will be their parents, i.e., those exercising parental authority. However, if there are no parents, those holding guardianship over the minor will be authorized to do so.

In these cases, it is advisable to initiate the incapacity procedure before the minor reaches the age of majority, provided it is foreseen that they will continue to suffer from the illness or deficiency that prevents them from performing legal acts on their own after reaching eighteen years of age.

The purpose of requesting a declaration of incapacity in such cases is none other than, in the best interest of the minor, to extend the guardianship once the incapacitated person is no longer a minor.

Persons Authorized to File a Petition for the Legal Incapacitation of an Adult

In the case of an adult, a greater number of people are authorized to initiate this procedure than in the previous case.

Thus, the declaration of incapacity of adults can be promoted by their spouse or person in a similar de facto situation, and close relatives such as their descendants or ascendants and siblings of the alleged incapacitated person. But in addition, the alleged incapacitated person themselves will also be authorized to do so, without forgetting the role of the Public Prosecutor’s Office.

Petition for Legal Incapacitation

Through the lawsuit initiating the procedure, the Judge is informed of the existence of an allegedly incapacitated person who cannot govern themselves and manage their assets, and the appointment of a legal representative is requested.

The lawsuit requesting incapacity must be served on the defendant – i.e., the allegedly incapacitated person – for them to respond within a period of twenty days. If no response is filed within this period, the Public Prosecutor’s Office must request the appointment of a judicial defender for the defendant.

It is important to note that, at times, plaintiffs, and even the Judge themselves, may consider it necessary to adopt a series of measures to protect the allegedly incapacitated person while the incapacity procedure is being processed until the corresponding judgment is issued.

Examples of the measures referred to in the previous paragraph would be: the request for the preventive annotation of the incapacity lawsuit in the Property Registry; the appointment of someone to provisionally manage the assets of the alleged incapacitated person; or, among others, the need for the Judge, at the request of the plaintiffs, or when deemed appropriate, to authorize a possible involuntary commitment of the defendant to a center when their admission is considered essential for their better protection.

The preventive measures adopted in such cases will remain in force until the Judge makes a decision in the incapacity process. Thus, once the decision is issued, it must rule on the maintenance or termination of said measures, or, if applicable, their replacement by those deemed appropriate.

Once the lawsuit is filed and admitted, evidence will be presented and a hearing will be held.

Testing Practice

Regarding the evidence to be presented in the incapacity procedure, these include, in addition to those deemed relevant by the Judge, the documentary evidence requested by the parties and submitted with the lawsuit to prove the defendant’s lack of capacity.

Likewise, the Law requires that, in all cases, the following evidence be presented:

• The hearing of the defendant’s closest relatives;
• The examination of the defendant by the Forensic Doctor, in order to issue a medical expert report informing about the illness or deficiency presented by the interested party and its impact on their capacity to act; and,
• The examination of the alleged incapacitated person by the Judge, who must interview the defendant before making a decision on the requested incapacity.

The Order of Legal Incapacitation

The judgment eventually rendered must precisely determine the extent and limits of the requested incapacity, but also, in accordance with this provision, it must specify the guardianship regime to which the incapacitated person will be subjected, agreeing to the appointment of a natural or legal person who will exercise guardianship over the incapacitated person, in order to enable them to exercise their rights through their legal representative – if totally incapacitated – or with the assistance of a third party – if partially incapacitated by the judicial sentence –.

This judicial pronouncement is necessary because the person appointed by the Judge to exercise guardianship over the incapacitated person and protect their assets will substitute or assist them in performing legal acts or transactions for which they have been judicially appointed, and this is because the incapacitated person lacks, as a consequence of their illness or deficiency, free and conscious will, and therefore does not possess sufficient discernment to make decisions in their own benefit.

Regarding the nature of the judgment, it is of a constitutive nature, as it creates a legal state or situation that did not previously exist, and produces ex nunc effects – that is, from now on – so that the judgment issued on the capacity of the alleged incapacitated person, according to their circumstances, will declare the defendant:

• Either under the legal status of total and absolute incapacity —if it is established through the relevant evidence that the defendant is unable to manage his or her own affairs and administer his or her property—or,
• Either under the legal status of “partially incapacitated” —when the individual is able to perform certain acts on their own but requires the assistance of another person for other acts of greater significance —. In this case, the court’s ruling must specify for which types of acts such assistance is necessary.

Once a judgment is issued, its effects should not necessarily be considered permanent or definitive, as the Law allows that, if new circumstances arise, a new procedure may be initiated in which the scope of the previously declared incapacity can be modified, or said declaration can be revoked.

However, it is unusual to revoke a court-ordered declaration of incapacity, since this declaration is made after verifying, as we have stated, the existence of a“persistent physical or mental illness or disability that prevents the person from managing their own affairs,” and because of its “persistent” nature, cases in which the incapacitated person regains their capacity are rare.

On the other hand, it is possible, in the event of a partial incapacity judgment, for it to worsen or even improve subsequently, making it necessary to modify the scope of the previously declared incapacity.

In any case, a declaration of incapacity by a judge will not affect legal capacity, as legal capacity ceases only upon death.

IN DIEM Lawyers: Málaga, Seville, Madrid, Las Palmas de Gran Canaria, Huelva…

As attorneys specializing in legal incapacity matters, we resolve issues related to dependency and protection by taking legal actions that include declaring legal incapacity, appointing a guardian, preparing an inventory of assets, authorizing the sale of assets belonging to legally incapacitated individuals, etc…. We are here to assist you with whatever you need. You can reach us through the IN DIEM Lawyers Hotline at (+34) 901 900 071. In case of emergencies, you can reach us at the IN DIEM 24-Hour Emergency Lawyers Hotline: (+34) 610 667 452.