In which cases can the legal incapacity of a family member be promoted?

Legal incapacity, also called civil incapacity, is a legal situation of a person who, due to his or her sensory, physical or psychological situation, is unable to govern his or her property or his or her own person. It is therefore necessary for another person, either in the form of a legal guardian, curator or tutor, to look after his or her civil situation in any given situation.

It must be assumed that civil incapacity is not synonymous with disability. This is mainly due to the fact that the first concept refers to a civil status, which is why it is necessary to have a firm judicial sentence that certifies it. On the other hand, the second is simply an administrative situation.

A Knowing that civil incapacity is a complex concept, our team of lawyers would like to help you understand what it entails.

Legal incapacity does not occur automatically.

The law categorically states that, except in the case of minors, all persons are capable of managing their own lives and of acting accordingly. This is the reason why the status of civil incapacity is not acquired automatically, but has to be requested and must be acquired by a final court decision.

In order to reach this situation, the lawyers of the family members concerned, together with those they represent, must face a legal process that meets all the needs and guarantees of the person to be incapacitated. In fact, the certification as such must always be carried out by the Public Prosecutor's Office. This procedure is usually simple, but at the same time indispensable.

For its part, current legislation does not establish a closed list of illnesses or situations in which a person can be declared legally and civilly incapable. What it refers to is 'mental or physical deficiencies or persistent illnesses'. Therefore, it is a sine qua non requirement that these problems have continuity over time and that they prevent the subject from managing his or her interests in an adequate manner.

Who are the parties entitled to initiate the process of civil incapacity of a family member?

The application for incapacity must be filed in the Court of First Instance corresponding to the domicile of the person to be incapacitated. This process must be initiated, inevitably, by one of these persons or legal entities:

• The Public Prosecutor's Office: can only initiate this procedure if there are no spouses, descendants, siblings or ascendants of the person to be incapacitated.
• The spouse: or any other person who is in a similar situation with respect to the patient.
• The descendants, siblings or ascendants of the sick person: in the case of minors, only the father, mother or, in their absence, the legal guardian may initiate the procedure.

The civil incapacity procedure

The procedure necessary to certify the civil incapacity of a subject by means of a final judgement will vary depending on whether it is initiated by a family member or by the Public Prosecutor's Office. Here we set out the two cases.

Civil incapacity proceedings when initiated by a family member

It begins with the registration of a civil incapacity application, as mentioned above, in the Court of First Instance corresponding to the domicile of the patient. In order to do so, the intervention of the family members' lawyers and a solicitor is necessary. In the event of lack of sufficient financial means, one of the public defence lawyers available will be assigned to the case. This speeds up the process enormously.

This application is communicated to the person to be incapacitated by sending a letter to his or her home address. Once the letter arrives, the legislation provides for a period of 20 days for a response. In most cases, due to the situation of the patient, this does not occur. In any case, the court must inform the Public Prosecutor's Office, who will be responsible for the patient's defence. 

The relative must demonstrate to the judge that the person he or she wishes to legally incapacitate really has a situation that makes it impossible for him or her to look after his or her own interests. In fact, the Public Prosecutor's Office will oppose the acquisition of this condition until he proves otherwise. This is why you should provide your lawyer and solicitor with the following documents: 

• Documentary evidence supporting the situation of incapacity of the patient
• Testimony of at least three close relatives of the person to be incapacitated.
• Medical examinations attesting to the incapacity.

In addition, the judge shall grant an oral hearing to the alleged incapacitated person in order to certify his condition himself. In addition, he shall order a forensic examination carried out by the doctor attached to the Court of First Instance concerned. On this basis, he shall issue a final judgment, which may certify the following:

• Total incapacity: the judge considers that the person is incapable of administering his or her own property or taking care of his or her own person.
• Partial incapacity: the judge considers that the subject is capable of carrying out certain legal acts by him/herself but that, for others, he/she needs the assistance of another person. The judgement must clearly typify the cases for which he/she is capable and those for which he/she is not.

This sentence will also specify who will exercise the guardianship or curatorship, as the case may be, of the sick person. The priority will always be to designate the person indicated by the incapacitated person by means of a legal document or will, although this person may refuse. In these cases, these functions may be assigned to any other emancipated relative of the first degree or a legal guardian may be appointed.

Civil incapacity proceedings when initiated by the Public Prosecutor's Office

In the event that the patient lacks ascendants, descendants and siblings, or that these are not in a position to carry out the procedure, any person can inform the Public Prosecutor's Office of their presumed situation of incapacity so that it can initiate the procedure. We are talking, for example, of those responsible for the old people's home or the psychiatric centre in which the subject is admitted.

In this type of case, the Public Prosecutor's Office appoints a natural or legal person to defend the patient, by means of a lawyer and solicitor, during the civil incapacity proceedings. The rest of the process is exactly the same as described in the previous case. 

Is the situation of civil incapacity reversible?

The answer is yes. In order to annul the sentence of incapacity issued by the judge, it is necessary for the incapacitated person himself or his relatives to certify that the patient has regained normality and the capacity to govern his own life and administer his assets. This is not often the case, but current legislation provides for the possibility of this happening.

In short, legal incapacity, despite being a complex concept, is a simple process in judicial terms but one that requires the presentation of a large amount of evidence and takes time. For this reason, it is essential to have the services of a lawyer specialising in Civil Law to provide advice and, together with the solicitor, to ensure that the proceedings reach a successful conclusion.