The law ending judicial incapacity is published
After being approved by the Congress of Deputies on May 20 as a bill, Law 8/2021 is published in the BOE on June 3, 2021, of 2 June, on the reform of civil and procedural legislation to support persons with disabilities in exercising their legal capacity.
Its entry into force is scheduled within three months of its publication, i.e. on 3 September 2021.
The present reform of civil and procedural law is intended to make a decisive step towards bringing our legal system into line with the International Convention on the Rights of Persons with Disabilities, done in New York on 13 December 2006. an international treaty which in its article 12 proclaims that persons with disabilities have legal capacity on an equal basis with others in all aspects of life, and requires States parties to take appropriate measures to provide persons with disabilities with access to the support they may need in exercising their legal capacity.
It is thus necessary to change a system such as the one that has prevailed so far in our legal system, in which predominates substitution in decision-making affecting people with disabilities, by another based on respect for the will and preferences of the person who, as a general rule, she will be in charge of making her own decisions.
Structure of the standard and legislative changes
This law consists of eight articles, two additional provisions, six transitional provisions, one derogating provision and three final provisions.
Article 1 amends the Notarial Act with eight paragraphs.
Article 2, with sixty-seven paragraphs, amends the Civil Code.
The third article concerns the Mortgage Law and consists of nine paragraphs;.
Article 4 amends Law 1/2000, of 7 January, on Civil Prosecution, with twenty-nine paragraphs.
Article 5 amends Law 41/2003, of 18 November, on the property protection of persons with disabilities and amendments to the Civil Code, the Civil Procedure Act and the Tax Regulations for this purpose, and is divided into six paragraphs.
Article six amends Law 20/2011, of 21 July, on the Civil Registry, and is divided into ten paragraphs.
Article 7, referring to Law 15/2015, of 2 July, on Voluntary Jurisdiction, is structured in twenty paragraphs.
Article 8, which refers to the Commercial Code, is structured into three paragraphs.
In addition, DF1a introduces amendments to the Criminal Code, and DD Única repeals in its paragraph 3, articles 299 bis and 301-324 of the Civil Code.
Reform of the Civil Code
From the preamble of this law we can deduce that the reform introduced by article 2 in the Civil Code is the most extensive and far-reaching, as it lays the foundations of the new system based on respect for the will and preferences of the disabled person.
Title XI of the First Book of the Civil Code is redrafted and becomes initialed "Of the measures of support to persons with disabilities for the exercise of their legal capacity". The element on which the new regulation will revolve will be neither the incapacitation of those who are not considered sufficiently capable, nor the modification of a capacity that is inherent to the condition of human person and, therefore, cannot be modified. On the contrary, the central idea of the new system is to support the person who needs it, which, as the aforementioned 2014 General Comment recalls, is a broad term that encompasses all kinds of actions: from friendly accompaniment, technical assistance in the communication of statements of will, the breaking of architectural and all kinds of barriers, advice, or even decision-making delegated by the person with disabilities. It should be added that in situations where support cannot be provided otherwise and only in the face of such impossibility, this may take the form of representation in decision-making.
"It is not, therefore, a mere change of terminology that relegates the traditional terms "incapacity" and "incapacitation" to more precise and respectful ones, but rather a new and more accurate approach to reality, which reveals something that has long gone unnoticed: that persons with disabilities are holders of the right to make their own decisions, a right which must be respected; it is therefore a matter of human rights. Many of the constraints traditionally linked to disability have not come from people affected by it, but from their environment: physical, communicative, cognitive, behavioral and legal barriers that have curtailed their rights and the possibility of exercising them.
The institution subject to more detailed regulation is the curatorship, the main support measure of judicial origin for people with disabilities. The very meaning of the word curatorship -care-, reveals the purpose of the institution: assistance, support, help in the exercise of legal capacity; therefore, as a principle of action and in the line of excluding as much as possible actions of a representative nature, the curatorship will be primarily of an assistive nature. However, where necessary and only exceptionally, representative functions may be attributed to the trustee.