Spain: Incapacitation - How To Protect An Individual And Their Estate
The recent death of Adolfo Suárez, after a long battle with Alzheimer’s, makes it timely for us to talk to you today about the legal consequences that may result from illnesses and disabilities that reduce an individual’s capacity to make decisions.
Up to a point, it may be easy for relatives and those close to the sufferer to detect when they should stop carrying out certain everyday activities and, to protect them, prevent them from doing so. For example, to avoid them getting lost or disorientated, they do not allow them to drive or go out into the street alone; to prevent risks to their health, they accompany them to the doctor, if they find it difficult to understand prescriptions and do what is prescribed; and to avoid them getting upset because they cannot follow the conversations or they confuse people, they stop taking them to family gatherings.
However, it is not so easy to protect the sufferer from the legal consequences of their actions. Indeed, when their ability to calculate is affected, if they do not know how to discern the value of things or understand the meaning of what they read or sign, acts such as handling money, making transfers, taxes, payments and other bank transactions or signing contracts and documents are formalities that the sufferer should not undertake by themselves.
If they carry them out unsupervised, they may, on account of their condition, end up unwittingly squandering their property or being the victim of deception. That could all result in serious consequences for their estate, which would be very difficult to put right.
In the case of acts that require the involvement of a notary, such as selling their flat, accepting an inheritance or changing their will, they simply will not be able to carry them out, as the notary will not let them sign. That could, indirectly, put the family in a difficult situation financially, because the sufferer will not be able to sign either contracts or deeds where, for example, it is necessary to sell or rent out their flat to cover the cost of a care home or their care. If the affected individual is a business owner, it could also have a detrimental effect on their business, as they will not be able to transfer their shares, vote at shareholder meetings or act as a director, board member or representative.
The instrument that allows us to provide the sufferer with legal protection is INCAPACITATION. This is a judicial procedure intended to determine what acts an individual may and may not carry out in relation to their person and their property, and to establish the figure who will ensure the adequate protection of the affected individual and their estate: this is most commonly a guardian.
The judge will normally appoint a relative of the affected individual as their guardian, who will have to act as their legal representative and administrator of their property. That is to say, the guardian replaces the affected individual in almost all the legal transactions that the latter can no longer carry out: signing documents, banking, payments and collections, etc. We say “almost all”, because there are actions for which the guardian will always need judicial authorisation, such as selling property or shares, among others.
Those suffering from Alzheimer’s and other forms of dementia are the principal subjects of these proceedings, which have doubled in number in the last ten years and which are forecast to become even more numerous on account of the aging population. Despite this increase, in Spain there are around 800,000 dementia sufferers who meet the requirements for being declared incapable, but incapacitation has only been requested in 70,000 cases, in many of them because of urgent financial need.
Why are families so wary of making a request for incapacitation to the courts? There are two main reasons, both of them very human and understandable, but erroneous:
1) “Fear of the unknown”: having to bring legal proceedings seems very complicated to them and makes them reluctant. It is not! The proceedings are simple and exempt from the payment of court fees, as the judge is not required to settle a dispute, but rather to protect a vulnerable individual.
2) “The feeling of guilt”: to many children, husbands and wives it seems a form of betrayal to subject their loved one to the scrutiny of the judge and the medical examiner, as they believe that they are going to go through a painful ordeal that they do not deserve. Nothing could be further from the truth! The judges and doctors that examine those suspected of incapacity are specialists and do so gently and humanely. It is not a question of humiliating anyone or exposing their deficiencies, but rather of discerning to what extent the individual is lucid, in order to decide what is best for them.
At Estudi Jurídic Sánchez & De Canals we believe that, especially in cases of incapacitation, we have to be more than just lawyers. That is why we strive to help relatives understand that incapacitation is not a punishment for their loved one, but rather a guarantee for their person and their estate. To that end, we accompany our technical work with teaching work, explaining to the relatives the details of each phase of the process, accompanying them to the legal-medical examinations, so that they do not have to go through that alone, and passing on the relatives’ opinion to the court, as no one knows the sufferer better or has a greater interest in their welfare than those nearest to them.
If there are individuals with Alzheimer’s or dementia in your family, do not wait until it is too late to make a decision; just as you protect your loved one from day to day, protect them legally as well. We know that taking the step is not easy, but in many cases it is the best or only way to truly safeguard their welfare and estate. We are at your disposal to help you with these proceedings and make them more bearable for you.
Cristina de Canals
Socia de Estudi Jurídic Sánchez & de Canals
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