From a legal point of view, this reform introduces amendments not only to the Civil Code, but also to various regulations, such as the Notaries Act, the Mortgage Act, the Code of Civil Procedure, the Protection of the Property of Persons with Disabilities Act, the Civil Status Act and the Voluntary Competence Act. To this end, the current guardian must ask the court to adapt the court`s decision establishing incapacity to the new rules. You will not cease to be a guardian, you will continue to be the guardian, although it is expected that the judgments previously rendered will be adapted to the new law, either because the guardian requests it within one year from the entry into force of the law, or within 3 years if it is done ex officio. This new law, which aims at a paradigm shift in the field of disability, in my opinion, leaves a certain shadow with regard to the carers of these people when this care is provided by social welfare institutions. In addition, the situation of age-related disability or dependency, which is often of a permanent nature, does not seem to have been taken into account in their treatment and requires the continuous adoption of representative measures. The holders of parental authority will exercise it pending an examination in order to adapt the judgments to the new law. Casuistry is very heterogeneous, so there is no general answer and it is necessary to check on a case-by-case basis. The new legislation is part of the biggest legislative reform on disability in ± Spain and includes the repeal of previous laws. It is also a pioneer at European level. It is supported by the social movement that has been defending the rights of persons with disabilities for 14 years and is based on the principles of the International Convention on the Rights of Persons with Disabilities for ±. Did you know that from September 3, 2021, the figure of the teacher of the elderly will disappear? In fact, it is one of the measures included in the new Law 8/2021, of 2 June (BOE 3 June), which reforms civil and procedural legislation to help people with disabilities exercise their legal capacity, which I have already repeated in a previous article on the same pages[1].
In addition, the new regulation requires notaries to help the disabled person draw up their own will. Consequently, the figure of the notary is retained as the person who investigates, interprets and adapts the will of these persons to the legal system, for which he must know and ensure what his will is. It is in the presence of a notary that a person can also determine voluntary support measures. An important figure regulated by the new law is the de facto guardian, who is in a way an “informal” supporter, which distinguishes him from the curator, who would be a “formal” supporter (whether or not he participates in a trial). What worries social organizations most is that the support system is effective and guaranteed, because if no economic effort is made to change resources, be greater and adapt to the new needs of the law, implementation will fail. It will require, they say, a wider network of support figures and their recognition in social services (cognitive accessibility, facilitator figure). Society will also have to change its behaviour. Parents who have an adult child and are mentally disabled cannot give informed consent in the case of a medical intervention, but the Personal Autonomy and Rights and Obligations regarding Clinical Information and Documentation Act regulates consent by proxy in a case such as this. After all, if the patient is not able to make decisions at the discretion of the doctor responsible for the treatment, or if his physical or mental condition does not allow him to take responsibility for his situation, if the patient does not have a legal representative, consent can be given by the persons associated with him for family or factual reasons. The transitional provisions of the new law provide that measures adopted before the entry into force of this law must be adapted to the new regulations within a maximum period of 3 years, and the current guardian may apply to the court to review and adapt the new law within one year.
and the application for appointment of another person as curator. The adoption of this new law was described at the time by the president of the General Council of Notaries, José Ángel Martínez Sanchiz, as a “historic step”. The Director of Social Affairs of the Aequitas Foundation, Federico Cabello, said: “We are facing a reality that few imagined a few years ago and we must congratulate ourselves. Now we have a lot of work ahead of us. The figure of the guardian disappears, usually a parent: it is no longer possible for a person other than the disabled person to make legal or medical decisions for him. Only minors who are not powerless and minors who are not subject to parental authority are subject to guardianship. The focus of the new regulation will be neither the incapacity of those who do not consider themselves sufficiently capable, nor the impairment of a capacity inherent in the condition of the human person, and it is therefore assumed that it cannot be modified. As a result, the guardianship figures are eliminated from our legal system (this number is reserved for minors who may need it), extended parental authority and adult parental rehabilitation, and move to a system whose central idea is to put in place measures to accompany the person who needs them. whereas persons with disabilities have the right to make their own choices, which must be respected; It is therefore a human rights issue. With the new regulation, the figure of the guardian of the person, who cannot be replaced, usually disappears with the figure of the curator, who will usually be the person who can provide personal care to the disabled person. In addition, the situation of many individuals and families remains in the air. The new legislation provides for a period of 3 years for ± adaptation and repetition of decisions already taken to change legal capacity©. Starting today, September 3, you can request a review of your file: if the person does not request it, it is the courts.
The case is very complicated and heterogeneous, so there is no general answer, and it will be necessary to check © on a case-by-case basis in order to apply to each of the principles established by law. No, as I noted above, guardianship does not disappear and guardians do not automatically become conservatives. As noted, the law provides for a period during which guardians become largely supportive guardians and, in some cases, representative guardianships. Blog » Rights of Persons with Disabilities » What should I do if I am a guardian of the new Handicappers Act? As part of a domain plan, guardianship can play an important role. Assuming you really want help with your living expenses, you shouldn`t hold back from talking to an experienced legal counsel. Contact Ettinger Estate Planning today to schedule a free case evaluation. As a general rule, anyone who really can`t love themselves should do so. A lawful guardian delegated by the state, as required by New York Guardianship Act. All minor children should be assigned a legitimate guardian in the case of a parent. Don`t be available to really focus on them, according to New York`s guardianship law.
Since children are obliged not to have legal obligations to themselves. Children may need a delegated guardian under the New York City Guardianship Act due to death. Imprisoning or removing a parent, or when a parent can no longer really focus on their child.