{"id":12152,"date":"2018-11-21T18:38:38","date_gmt":"2018-11-21T17:38:38","guid":{"rendered":"https:\/\/www.in-diem.com\/abogados\/uncategorized\/incapacitated-persons-guardianship-curatorship-and-judicial-defender"},"modified":"2018-11-21T18:38:38","modified_gmt":"2018-11-21T17:38:38","slug":"incapacitated-persons-guardianship-curatorship-and-judicial-defender","status":"publish","type":"post","link":"https:\/\/www.in-diem.com\/en\/abogados\/incapacity\/incapacitated-persons-guardianship-curatorship-and-judicial-defender","title":{"rendered":"Incapacitated Persons: Guardianship, Curatorship, and Judicial Defender"},"content":{"rendered":"

The purpose of judicial incapacitation.<\/strong><\/h2>\n

Once the incapacitation claim has been filed and the legally established procedure has been completed, the Judge must issue a judgment in which he must precisely determine the scope and limits of the incapacity<\/strong> requested. Furthermore, he must specify the care regime<\/strong> to which the person incapacitated by it must be subject, ordering the appointment<\/strong> of the natural or legal person who will exercise the care of the incapacitated person, that is, their protection.<\/p>\n

As we already know, incapacitation does not eliminate or restrict the rights held by incapacitated persons, but it does condition their exercise.<\/p>\n

In this way, once persons have been incapacitated by judicial judgment, they may continue to exercise their rights, although they may do so according to the type of incapacity declared, through their legal representative<\/strong>\u2014in the case of total incapacitation<\/em>\u2014or with the assistance<\/strong> of a third party\u2014if they are partially incapacitated<\/em>.<\/p>\n

The action through which we can promote the incapacitation of another person cannot<\/strong> be understood as a<\/strong> discriminatory action<\/strong> exercised against the allegedly incapacitated person. That is, it is not an offensive measure, but rather<\/strong> the opposite<\/strong>. For this reason, our Legal System configures the incapacitation claim as a preventive<\/strong> instrument. <\/p>\n

The foregoing means that when we file a claim to incapacitate someone, we are making use of a legal system for the protection of the family with which we protect those who do not possess the full mental and volitional faculties necessary<\/strong> to function autonomously in their daily lives. Indeed, this lack of aptitude or capacity makes these persons vulnerable beings who become victims of those who take advantage of such vulnerability to commit abuses<\/strong> that sometimes occur against their person or, in other cases, against their assets<\/strong>. <\/p>\n

It is true that, from the point of view of the defendant\u2014the allegedly incapacitated person against whom we direct the claim<\/em>\u2014the very idea of being incapacitated (generally by a family member) may be<\/em> viewed as an attack on their independence, their personal freedom of decision or action and, consequently, may cause confrontations<\/strong> with those who seek to promote their judicial incapacitation and normally apply to exercise their care. In these cases, the defendant may oppose such claim by filing an answer to the complaint. <\/p>\n

Notwithstanding the foregoing and despite the pain involved in its exercise, incapacitation is carried out in numerous cases due to the frequency of cases in which elderly persons, patients with mental disabilities, and even persons with some type of addiction<\/u> are subject to abuse<\/strong> by third parties or entities that take advantage of the aforementioned situation of vulnerability in which they find themselves due to their lack of capacity to act<\/strong>. Thus, an article recently published in the newspaper ABC of Seville explains the “modus operandi<\/em>” employed by the latter. The text states: <\/p>\n

“They exert undue influence on the elderly<\/strong>, keep their victims in ignorance, emotionally isolate them from others and from information, generate fear in them, take advantage of their vulnerabilities, create dependencies, foster lack of confidence in their abilities, induce shame and secrecy, and perform intermittent acts of kindness to make them believe they are their friends<\/em>.”<\/p>\n

The current increase in demographic aging<\/strong> increases these types of scenarios. Thus, the cited newspaper article speaks of up to 700 incapacitations per year in the Courts of Seville, and presents by way of example real cases of fraud<\/strong> against elderly or disabled persons such as the following: <\/p>\n

“…requesting a declaration of incapacity for a brother over 60 years old who has a 65% degree of physical disability:<\/strong><\/em> <\/p>\n

“The real estate agency and the bank deceived him\u2014he denounces\u2014because they gave him a mortgage to buy in Seville and made him put up as collateral the house that my parents left him, 120 square meters in the mountains. For him, who has an orphan’s pension of 680 euros per month, they sold him a house of 65 square meters, which required him to pay 400 euros per month, but when the variable interest rates went up, the monthly mortgage rose to more than 500 euros.”<\/em><\/p>\n

In the end, the bank foreclosed on his brother’s house and reached an agreement with him to pay social rent of 265 euros to remain in the same home they took from him. “Now the five years of social rent are ending and they are going to evict him from the home, so we have asked the Prosecutor’s Office to declare his incapacitation,” his brother states<\/em>.<\/p>\n

As can be seen, this example is one of the multiple types of abuse<\/strong> that can be committed against persons in need of special protection. Many of these situations can lead, when there is no proper oversight, to cases of misappropriation, loss, or serious squandering of the capital<\/strong> of the incapacitated person<\/strong>, if at the asset level, and if at the personal level, to absolute lack of control over monitoring a possible medical treatment that may have been prescribed, etc. <\/p>\n

However, in our Civil Code there are different mechanisms<\/strong> with which to avoid the situations described above and achieve the protection<\/strong> of incapacitated persons. Thus, it is established therein that: “the care and protection of the<\/strong> person and assets<\/strong> or only of the person or of the assets<\/strong> of minors or incapacitated persons shall be carried out, in appropriate cases, through:<\/em> <\/p>\n