Barcelona Alzheimer Treatment & Research Center

socio-legal protection

Sitges document

The work of the expert group for the 2009 Sitges Document has turned on the axis of analysing legal and social protection measures to prevent full incapacity from being used as a single, easy solution to the loss of cognitive abilities.

It promotes partial, progressive, “to measure” incapacity in order to resolve specific situations and to advocate for decisions that do not merely consider one aspect of the pathological process, but rather the environment and circumstances in which that process takes place, aiming to preserve and maintain the person’s autonomy for as long as possible.

socio-legal glossary

A


asset manager

If the judge considers that it is so required by the estate of the person under guardianship, he/she may order that representation and personal care fall upon the guardian, and that a second person be appointed to manage the ward’s property and financial affairs.

autotutela

A person appointing his/her own guardian, known colloquially in Spain as autotutela, foresees the possibility that a person may, on their own account, appoint through a notarial certificate or a living will document the person or persons that they would wish to have as their guardian(s), thus establishing powers of disposal regarding their person or assets.

In the event that the person is later declared not to have legal capacity, the judge handling the procedure must check, by requesting information from the relevant registry, whether the person concerned has previously appointed a guardian in an autotutela document.

C


legal capacity

Legal capacity is understood as the aptitude to hold rights and obligations. It is acquired at birth and preserved until the person’s death (or a declaration of presumed death). Therefore, a newborn, for example, can hold a bank account because they have legal capacity. Legal capacity is maintained throughout a person’s life and can not be limited or suppressed.

capacity to act

Capacity to act allows a person to carry out all kinds of actions with legal effect. To continue with the previous example, a minor who holds a bank account could not make transactions until he/she had the capacity to act. Capacity to act is obtained when one is of legal age and is maintained throughout life, so long as it is not modified by a ruling of declaration of incapacitation or modified capacity.

informed consent

Informed consent is the process through which it is guaranteed that a person has voluntarily expressed their intention to participate in research (essentially, a clinical trial), having understood the information that they have been given about the study’s objectives, benefits, disadvantages, possible risks and alternatives, and the person’s rights and responsibilities.

In some cases, for example for physical examination by a doctor, consent is implied and inferred. For more invasive procedures, or those associated to significant risks or to which there are alternatives, informed consent must be presented in writing, with the patient’s signature.
In certain circumstances, there are exceptions to informed consent. The most frequent cases are medical emergencies where immediate medical attention is required to prevent serious or irreversible damage.

inheritance contract

An inheritance contract is understood to be any agreement, including that resulting from reciprocal wills, which confers, modifies or revokes, with or without consideration, rights relating to the inheritance or future inheritance of one or more people who are parties to the agreement.

curatela

In specific cases, the ruling of declaration of incapacitation or modified capacity to act, depending on the degree of judgement of the person in question, may establish that the person is subject to only to a reduced form of guardianship, called curatela in Spain.

The content of the regime of curatela is determined in the declaration of incapacitation ruling. If the ruling does not specify the actions for which the ward requires the guardian’s assistance, it is understood that assistance must be given for all those acts of such significance that judicial authorisation would be required of guardians under a regime of full guardianship.

The guardian may be a natural person or a non-profit legal entity. Unlike with full guardianship, the guardian in the curatela regime does not hold the power of representation for their ward.

D


declaration of incapacity / declaration of modified capacity

A declaration of incapacity or declaration of modified capacity is a legal resolution (ruling) by which it is acknowledged that a specific person, as a consequence of an illness, fully or partially lacks the capacity to act. In order for an agreement on incapacity to be reached, the person in question must meet three requirements:

  • They must have a physical or mental illness or deficiency.
  • Said illness or deficiency must be of a persistent nature.
  • Said illness or deficiency must impede their self-governance.

de facto care

De facto care may be defined as the recognition in law of a de facto situation in which a person is carrying out the functions of a guardian, such as giving personal care and managing assets for a person who can not care for themselves (a minor or an allegedly incapable person), without any resolution or judicial appointment having been made. Regulation on de facto carers is scarce in the Spanish Civil Code; it is a position about which only the following is determined:

  • When the judicial authority should become aware of the existence of a de facto carer, it may request him to inform on the situation of the person and property of the minor or the allegedly incapable person and his actions in connection therewith, and may also set any control and supervision measures deemed suitable.
  • Acts performed by the de facto carer in the interest of the minor or allegedly incapable person may not be challenged if they are to his benefit.

The Catalan Family Code also establishes that institutions that have under their care a minor or a person susceptible to be declared incapable are obliged to promote the constitution of guardianship.

Articles 303, 304 and 306 of the Spanish Civil Code regulate de facto care. De facto carers are addressed in the Catalan Family Code, articles 253 to 258 inclusive.

  • Cuando la autoridad judicial tenga conocimiento de la existencia de un guar-dador de hecho, podrá requerirle para que informe de la situación de la per-sona y los bienes del menor o de la persona presuntamente incapaz, así como de su actuación en relación con éstos; asimismo, puede establecer las medidas de control y vigilancia que considere oportunas.
  • Los actos realizados por el guardador en interés del menor o del presunto incapaz no podrán ser impugnados si redundan en su utilidad.

El Codi de Família catalán establece también que las instituciones que tengan bajo su guarda a un menor o a una persona susceptible de ser declarada inca-paz están obligadas a promover la constitución de tutela.

La guarda de hecho se encuentra regulada en los artículos 303, 304 y 306 del Código Civil. En el Codi de Família del Parlament de Catalunya la guarda de hecho se contempla en los artículos 253 a 258, ambos inclusive.

judicial defender

If there arises a conflict of interests between guardian and ward under curatela or full guardianship, or if a guardian has not been appointed but the circumstances require one, the judge may appoint a judicial defender for the person who must be subject to guardianship, to safeguard their interests provisionally. The judge will determine in each specific case the functions that the judicial defender must carry out to provide for the needs of the person requiring protection.

P


pre-emptive power

A pre-emptive power of attorney is a public document authorised by a notary, which allows one person (the grantor) to assign another (the attorney) to represent him/her in certain legal acts in the event that he/she becomes incapacitated.

Power of attorney in general, and pre-emptive powers of attorney in particular, form two broad groups:

  • General

The grantor confers faculties that allow the attorney to act in general. Said faculties must be specified in the document. The most common are: general power of attorney per se, power for litigation or the power to manage assets.

  • Special

Special powers of attorney empower the attorney in specific types of legal activity.

Furthermore, there are two types of pre-emptive powers of attorney:

  • Springing power of attorney. In this case, the attorney may only act as of the moment in which the grantor suffers the incapacity specified in the document.
  • Lasting power of attorney. More common than the former. Powers of attorney remain in place once the grantor becomes incapable; the attorney need not wait until that time to make use of them. Powers may be made use of from the moment they are granted, or from the date indicated in the document.

exempt property

Exempt property is a combination of assets and rights created in favour of the disabled person, the express purpose of which is the satisfaction of their basic needs.

Therefore, a disabled person can hold exempt property in addition to their ordinary property. These benefits are founded on the premise that the essential purpose of this property can not be other than that of meeting the person’s basic needs. Said advantages will be enjoyed by the disabled person and by those who contribute assets to that person’s exempt property.

It should be clarified that said property is not protected against third parties, debts or the disabled person’s pecuniary liability.

T


tutela

The legal institution through which a specific person or non-profit legal entity takes on the care of a minor or a person declared incapable or whose capacity to act has been modified. The functions the guardian must carry out are the representation, personal care and asset management of the person subject to guardianship. The guardian is assigned by a judge, must accept the role to which he/she has been assigned, and is subject to monitoring measures.

For example, they must submit an inventory of all assets at the outset of their work; provide annual accounts and report on the personal situation of their ward; request legal authorisation to carry out specific acts of particular significance, such as the sale of real estate or moving the ward to a mental health establishment; and upon the end of their work, they must present a final report of the accounts.

W


will

The will is the proceeding by which one person declares how they want their assets to be distributed upon their death.

A person’s estate comprises all the assets, rights and obligations which are not annulled as a result of their death. The testator may arrange their assets by inheritance (in a universal capacity) or by bequest (in a specific capacity).

In principle, a will can be written by all people who:

-As a general rule, are older than 14.

-Are not incapacitated: If the legal ruling of declaration of incapacity does not expressly indicate whether or not the incapable person can make a will, the notary will assign two doctors to give a verdict on the question, and will only authorise the will should said doctors attest to the testator’s competence.

To assess whether or not a will is valid in terms of the testator’s competence, the moment in which it was drafted must be considered. Therefore, the will is valid if it was made by a person who was competent on the day they made it, even if they should subsequently lose their cognitive faculties.

living will

Using an advance directive, also known as a living will, a person may specify what medical care they wish to receive in the event that in the future they should be unable to express themselves, or lack the faculties to be able to make decisions.

A legal representative may be designated in the living will and if desired, it may also include instructions about other, not strictly medical, aspects considered important by the person signing the document. The living will or advance directive document can be formalised before a notary or in a private document (with the requisite formalities as established in each autonomous community).

Currently, the advance directive document can be registered in the appropriate administrative registers. However, to guarantee the effectiveness of advance directive documents in the future, it is considered important that their contents be included electronically on healthcare cards.