Court declaration of incapacity of a relative
Originally published in November 2018. Since 2021, Spanish and Catalan law no longer provide for declarations of incapacity: they have been replaced by support measures that respect the person’s own will and preferences (such as assistance and curatorship). Please contact us for up-to-date advice if a relative needs support.
Who could be declared legally incapable?
- People with serious mental illnesses.
- People with an intellectual disability.
- People with severe cognitive impairment.
Types of incapacity and procedure
Total incapacity: people entirely unable to look after themselves in any aspect of daily life. They do not lose their rights, but these are exercised by a third party (a relative or a public institution) under guardianship (tutela), which carries a series of responsibilities for the guardian, who must account for everything to the court every year.
Partial incapacity: the court appoints a curator under curatorship (curatela). The curator must look after the person in certain legal acts, generally related to managing their assets. This measure is often used for people with certain mental illnesses or addictions (gambling or drugs). The curator must also submit annual accounts to the court.
Declarations of incapacity by illness
Proceedings were commonly brought in cases of:
- Schizophrenia
- Alzheimer’s disease
- Down syndrome
- Bipolar disorder
- Alcoholism
- Dementia
- Gambling addiction
What protective measures exist?
- Guardianship: the main measure protecting people declared incapable, covering both their assets and their person.
- Curatorship: it does not replace the person’s capacity entirely but complements it, mainly in matters concerning their assets.
- Asset administrator: manages and administers the person’s assets. This role arose for cases in which there is a direct conflict between the person’s financial interests and those of the person who would be appointed as guardian or curator.
- Guardian ad litem (defensor judicial): a temporary role appointed by the court when the person urgently needs a curator or guardian while the appointment of the guardian, curator or asset administrator is being processed, or when there are conflicts of interest between them.
Who could start the proceedings?
The following could bring the claim before the court:
a) The person concerned.
b) Their spouse or unmarried partner.
c) Their descendants.
d) Their ascendants.
e) Their siblings.
f) The Public Prosecutor.
g) In the case of minors, only the person holding parental authority or guardianship over the minor.
