From September 2021, thanks to Law 8/2021, “incapacitation” will no longer exist in our legal system, as we have finally aligned ourselves with the International Convention on the Rights of persons with disabilities and the assumption underlying this Convention that a disability neither removes a person’s legal capacity nor suspends their rights.
This law abolishes the figure of the guardian as the person who replaces the person with a disability in decision-making and introduces a new system of support measures for these people: de facto guardianship for certain situations where there are no judicial measures (guarda de hecho); guardianship (curatela), which involves support in relation to the autonomy of the person with disabilities; and the legal representative of interests (defensor judicial) , which is an occasional support for more complex cases or for cases of conflict of interest between the support person and the person with disabilities.
The application for the above-mentioned support measures can be made by the spouse, relatives in the ascending and descending line, siblings, the public prosecutor’s office and the disabled person themselves. In addition, people with degenerative diseases (Alzheimer’s, Parkinson’s, dementia, etc.), if they still have full legal capacity, can determine who will be their carer, how their assets should be managed, where they want to live, etc.