Civil Judicial Incapacity

Judicial Incapacity.

Legal Capacity and Capacity to Act.

From birth, all individuals possess legal capacity, meaning the ability to hold both rights and obligations, and likewise, to be subjects of legal relationships. We hold this type of capacity regardless of our age and physical or mental health, and likewise, regardless of our marital status.

However, legal capacity should not be confused with capacity to act or to exercise rights, since, unlike the former, this is the capacity that individuals possess from the age of majority and which allows us 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 for their legal acts to be valid?

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

 

Incapacitated Persons.

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:

• Moment of acquiring majority. Capacity to act is not recognized from birth, but from the moment we reach the age of majority.

• Proof of lack of capacity. Capacity to act may be affected if the concurrence of what the Supreme Court has considered as “an illness or deficiency that allows concluding that a person is not in a position to govern themselves, manage their assets, and likewise fulfill the remaining functions of an average person” is proven.

• Mandatory judicial procedure. It is necessary for incapacity to be declared by judicial sentence, because the mere verification or proof of the existence of an illness or deficiency – regardless of its severity – does not, per se, entail any limitation of capacity to act. For such a limitation or modification of capacity to act to effectively occur, the Law requires that a judicial sentence must be issued establishing it, after the appropriate judicial incapacity procedure has been processed.

 

Initiation of the judicial incapacity procedure.

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

This type of procedure will be initiated directly by means of a lawsuit filed before the Court of First Instance in the place where the alleged incapacitated person resides. However, the Civil Procedure Law states that anyone has the possibility of informing the Public Prosecutor’s Office of facts that are decisive for declaring a person’s incapacity, so that the Public Prosecutor, in view of the reports or documentation provided, may file an incapacity lawsuit when they consider there are sufficient indications 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 promote the incapacity 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 promote the incapacity 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.

 

Judicial Incapacity Lawsuit.

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.

 

Presentation of Evidence.

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 judicial incapacity judgment.

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 in the civil status of total and absolute incapacitated person – if it is verified by means of pertinent evidence that the defendant is not in a position to govern themselves and manage their assets – or,
• Either in the civil status of partially incapacitated person – when they can perform certain acts on their own, but require the assistance of another person for other acts of greater importance –. In this case, the judgment 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 judicially declared incapacity, as this declaration is made after verifying, as we have said, the concurrence of a “persistent physical or mental illness or deficiency that prevents the person from governing themselves”, and due to its “persistent” nature, cases where the incapacitated person recovers their capacity are infrequent.

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, the incapacity declared by the Judge will not affect legal capacity, as this only ceases upon death.

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

In our specialization as Incapacity Lawyers, we resolve situations of dependency and protection, exercising legal actions that include incapacity, guardian appointment, inventory formation, authorization for the sale of assets of incapacitated persons, etc. Our goal is to provide our clients with maximum satisfaction. Currently, IN DIEM Lawyers has offices in Malaga, Seville, Madrid, Las Palmas de Gran Canaria, and Huelva. We are at your disposal for whatever you need. You can reach us via IN DIEM Lawyers Phone (+34) 901 900 071. For emergencies, you can find us on IN DIEM 24-Hour Emergency Lawyers Phone: (+34) 610 667 452.

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