As explained in previous articles, Law 8/2021 brought significant changes in Spain in the regulation of the rights of persons with disabilities. In this week’s article we focus on a recent ruling of the Spanish Supreme Court that addresses two of the novelties introduced by this law: curatorship and de facto guardianship.
What’s new in Law 8/2021.
The main change of Law 8/2021 was to emphasize the provision of support and assistance measures for the disabled, instead of simply incapacitating them. Figures such as tutorship, extended parental authority and prodigality were eliminated. And others were introduced, such as the curator and the de facto guardian. Both of them have the aim of protecting, caring for and assisting the disabled person, but they present important differences.
Curatorship and de facto guardianship in the Spanish Civil Code.
The curatorship is a measure that is formally constituted. That is to say, it is decreed by a judge. Therefore, its scope and faculties are clearly delimited. Since a judge will be the one who establishes its content. The curatorship can be of two types: assistential or representative; depending on the degree of disability and the needs of the disabled person.
However, the de facto guardianship is an institution that exists by itself. That is to say, it has not been decreed judicially, nor by means of a voluntary measure such as a preventive power of attorney, etc. A de facto guardian is the persona that, effectively, is in charge of assisting the disabled person on a day-to-day basis. It can be a relative who lives with the disabled person. A neighbour. Etc. It will depend on each case.
Practical problems of the de facto guardianship.
The de facto guardian gained prominence after the change in the law. In fact, the Civil Code establishes that if there is a properly functioning de facto guardianship, it will not be necessary to establish a curatorship. This has led several courts to reject the appointment of a “curator” when there is a “de facto guardian”.
The main downside of the de facto guardianship is that its functions are not clearly delimited. Therefore, in practice, it is common for the de facto guardian to face problems on a day-to-day basis when dealing with the bank of the incapacitated person, dealing with the administration, etc.
Supreme Court Ruling 1444/2023: The specific case.
For the first time since the entry into force of the law, the Supreme Court has ruled on the matter. The case is as follows. A man suffered a cerebral stroke in 2016 that left him with a severe disability. From that moment on, his wife took charge, assisting him on a day-to-day basis, informally, by means of a “de facto guardianship”. Faced with constant difficulties (dealings with banks, the administration, etc.), his wife asked to be appointed as her husband’s curator.
Initially, her petition was rejected. The arguments of both the Judge and the Public Prosecutor’s Office were that there was already a de facto guardianship in place and functioning properly. And, therefore, there was no need for a curatorship. The Supreme Court has rejected this reasoning and has finally appointed his wife as curator. Therefore, the reflection of the High Court is clear: the provision that the curatorship is not necessary if there is a properly functioning de facto guardianship cannot be interpreted rigidly. The specific circumstances of each case must be considered.
Conclusion.
At White Baos Abogados we are experts in support measures for people with disabilities, curatorship and de facto guardianship. If you have a family member who needs help in this regard, or if you wish to put your wishes in writing, in a preventive power of attorney, for situations of dependency. Do not hesitate to contact us. We will study your case and offer you expert legal advice.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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