{"id":21713,"date":"2018-11-21T18:38:38","date_gmt":"2018-11-21T17:38:38","guid":{"rendered":"https:\/\/www.in-diem.com\/incapacitated-persons-guardianship-curatorship-and-judicial-defender\/"},"modified":"2026-08-12T15:22:45","modified_gmt":"2026-08-12T13:22:45","slug":"incapacitated-persons-guardianship-curatorship-and-judicial-defender","status":"publish","type":"post","link":"https:\/\/www.in-diem.com\/en\/incapacitated-persons-guardianship-curatorship-and-judicial-defender\/","title":{"rendered":"Incapacitated Persons: Guardianship, Curatorship, and Judicial Defender"},"content":{"rendered":"
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IMPORTANT: This <\/strong>article was written in accordance with the regulatory framework in effect at the time of its publication. Spanish regulations on legal incapacitation were substantially amended by Law 8\/2021, dated June 2, which replaced the system of legal incapacitation with a model of support measures for people with disabilities to enable them to exercise their legal capacity. Therefore, references to \u201clegal incapacitation,\u201d \u201clegally incapacitated person,\u201d \u201cguardianship,\u201d or \u201ccuratorship\u201d must now be reviewed in accordance with the current provisions of the Civil Code and the applicable regulations in each specific case. <\/em><\/p>\n\n

The Purpose of Legal Incapacitation<\/strong><\/h2>\n\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\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\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\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\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\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\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\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\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\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\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\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\n

As can be seen, this example is one of many types of abuse<\/strong> that can be committed against people in need of special protection. In the absence of proper oversight, many of these situations can lead to cases of misappropriation, loss, or serious squandering of<\/strong> the incapacitated person\u2019s<\/strong> assets<\/strong>, if the issue is financial; or, if the issue is personal, to a complete lack of oversight regarding the monitoring of any prescribed medical treatment, etc. <\/p>\n\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\n

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  • Guardianship.<\/em><\/li>\n\n\n\n
  • Curatorship.<\/em><\/li>\n\n\n\n
  • The judicial defender<\/em>.”<\/li>\n<\/ul>\n\n

    We briefly explain what each of them consists of…<\/p>\n\n

    Guardianship<\/strong><\/h2>\n\n

    It is created for the purpose of protecting the person or assets of those who have been, as a general rule, totally incapacitated<\/strong> by virtue of a judicial judgment. Therefore, for the exercise of their rights, as well as the fulfillment of their obligations, they will need to act through a legal representative. Indeed, with respect to their functions<\/strong>, the guardian is responsible for legally representing<\/strong> the person under guardianship, so that the latter cannot perform\u2014without their assistance<\/em>\u2014certain acts to which the Legal System confers legal significance, such as the execution of contracts, granting of powers, disposition of assets… since otherwise, they will lack legal validity, because according to the Law, “persons whose capacity has been judicially modified cannot give their consent<\/strong><\/em>” in contractual matters, and adds “in the terms indicated by the judicial decision<\/em>,” so that if it declares total incapacitation<\/strong>, the act or contract becomes null and void. <\/p>\n\n

    The appointment of a guardian<\/strong> is requested in the same incapacitation proceeding. It is the judicial judgment<\/strong> declaring the incapacitation that must contain the appointment of the person or entity that is to be responsible for the care and protection of the incapacitated person. <\/p>\n\n

    Once this is done, the person who has been judicially designated to hold the position of guardian must accept<\/strong> it beforehand in order to exercise it. To this end, they must appear at the Court for the taking of possession of said position and sign their acceptance. However, the Law also contemplates the possibility of refusing it or excusing themselves from its fulfillment based on certain grounds. <\/p>\n\n

    As established in Article 222 of the Civil Code, the following shall be subject to guardianship<\/strong>:<\/p>\n\n

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    • Unemancipated<\/em> minors who are not under parental authority.<\/li>\n\n\n\n
    • Incapacitated persons, when the judgment has so established.<\/li>\n\n\n\n
    • Those subject to extended parental authority, upon its cessation, unless curatorship is appropriate.<\/li>\n\n\n\n
    • Minors who are in a situation of abandonment.<\/li>\n<\/ul>\n\n

      Guardianship<\/strong><\/h2>\n\n

      Unlike guardianship, curatorship is that care institution<\/strong> that is generally provided for in the event that the Judge declares the partial incapacity<\/strong> of a person. This implies that the judicially incapacitated person, although maintaining sufficient capacity to express their will, nevertheless needs to be assisted by the curator, who supplements their capacity to act<\/strong> in order to perform certain acts that they cannot perform alone. <\/p>\n\n

      According to the jurisprudence of the Supreme Court, curatorship does not have to be limited to supplementing the asset sphere<\/strong>, but may also supervise the medical treatment<\/strong> to which the incapacitated person is subject, without replacing their will, but rather reinforcing and supplementing it for those acts that are specified in the judicial judgment of incapacitation.<\/p>\n\n

      That is, curatorship allows the incapacitated person to make decisions about their person or assets<\/strong>, thereby retaining a certain degree of autonomy<\/strong>\u2014which differentiates them from those who are subject to guardianship. However, for the full validity of their acts, the will<\/strong> of the person subject to curatorship must be supplemented by their curator.<\/p>\n\n

      Those who may be subject to the curatorship regime are, in accordance with Article 286 of the Civil Code, the following persons:<\/p>\n\n

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      • Emancipated persons whose parents have died or become unable to exercise the assistance provided by Law.<\/li>\n\n\n\n
      • Those who obtain the benefit of legal age.<\/li>\n\n\n\n
      • Those declared prodigal.<\/li>\n\n\n\n
      • Likewise, curatorship is appropriate for persons whom the incapacitation judgment or, as the case may be, the judicial decision modifying it, places under this form of protection in view of their degree of discernment.<\/li>\n<\/ul>\n\n

        With respect to the functions<\/strong> assumed by the curator, unlike the guardian, they do not act as legal representative<\/strong> of the incapacitated person, but rather assist and supplement their capacity<\/strong> in those acts that, in accordance with the provisions of the judgment, it is anticipated they cannot perform alone and without the intervention of a curator.<\/p>\n\n

        However, in those matters in which the curator should intervene and disagreements may arise between the curator and the person subject to curatorship, judicial assistance<\/strong> must be requested. Indeed, this is common because the curator may assist the incapacitated person both in their asset sphere and in their personal sphere, which may sometimes lead to a conflict of interest between them. <\/p>\n\n

        The Judicial Ombudsman<\/strong><\/h2>\n\n

        This figure is defined as that care institution<\/strong> provided for in our Civil Code for the following cases:<\/p>\n\n

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        • When in any matter there is a conflict of interest<\/strong> between minors or incapacitated persons and their legal representatives or the curator. In the case of joint guardianship exercised by both parents, if the conflict of interest exists only with one of them, it shall correspond to the other by law, and without the need for special appointment, to represent and protect the minor or incapacitated person. <\/li>\n\n\n\n
        • In the event that, for any reason, the guardian or curator does not perform their functions<\/strong>, until the determining cause ceases or another person is designated to hold the position.<\/li>\n<\/ul>\n\n

          In accordance with the foregoing, this is a figure for the protection of the incapacitated person characterized by the fact that their action is of a provisional or temporary nature<\/strong>, since they are responsible for representing or assisting<\/strong> the latter in the event that there are no persons who hold parental authority, guardianship, or curatorship over the minor or incapacitated person, or that if they exist, it is impossible for them for different reasons such as the existence of a conflict of interest between the latter and the incapacitated person; the removal of the guardian or curator; or the allegation by any of them of grounds for excuse not to exercise the care of the minor or incapacitated person.<\/p>\n\n

          The judicial defender must be appointed by the Judge, after processing the appropriate proceeding, if this figure is considered necessary as most convenient for the protection of the person or assets of the incapacitated person. However, in the event that any of the situations referred to in the preceding paragraph occur, the Public Prosecutor’s Office shall be responsible for assuming their representation and defense, unless it is the one who initiated the judicial proceeding, in which case the Law provides that a judicial defender shall be appointed to represent them in the trial through an attorney and assume their defense through a lawyer. <\/p>\n\n

          La Guarda, in fact<\/strong><\/h2>\n\n

          Finally, de facto care is contemplated in our Civil Code for those situations in which a person not judicially designated assumes the care and protection<\/strong> of someone incapable of acting. That is, this figure encompasses those cases in which a family member, neighbor, etc., takes charge of someone who is not capable of acting on their own. <\/p>\n\n

          The law provides regarding de facto care that, when the judicial authority becomes aware of the existence of a de facto caregiver, it may require them to report on the situation of the person and assets of the minor, or of the person who may require an institution of protection and support, and on their actions in relation to them, and may also establish the control and monitoring measures it deems appropriate.<\/p>\n\n

          It is necessary to specify that de facto caregivers do not act as guardians<\/strong>, that is, they can in no case substitute the consent of the allegedly incapacitated person<\/strong> in the performance by them of personal acts. However, on a precautionary basis and as long as the de facto care persists until the appropriate protection measure is established, the Judge may grant guardianship powers<\/strong> to the caregivers. <\/p>\n\n

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