Carlos Baos – Curatorship and Guardianship

Recent Supreme Court Ruling on Curatorship and Guardianship for Persons with Disabilities

In Spain, recent legal changes brought by Law 8/2021 have significantly impacted the rights of individuals with disabilities. This law has shifted its focus from incapacitating individuals with impairments to providing aid and assistance measures for them. Among the key novelties of the law, the figures of curator and de facto guardian stand out above the others This week, we dig into a notable ruling from the Spanish Supreme Court, addressing both of them.

Curator and De Facto Guardian

Curatorship is a formally established measure, ordered by a judge. This means its scope and authority are clearly defined by the judge, depending on the level of disability and specific needs of the individual. There can be no doubts, therefore, about the powers that the curator will have, both in the assistance sphere and in the representative sphere.

In contrast, de facto guardianship is an informal institution that doesn’t require a court decree. A de facto guardian is someone who takes on the role of assisting the impaired individual in his/her daily life.

De Facto Guardianship: Challenges in execution

The lack of officiality (as explained, this guardianship functions self-sufficiently) causes, in real life situations, several issues for the de facto guardian, that will most likely face obstacles when assisting the incapacitated before public administration, when dealing with banks, etc.

In addition to the above, due to the wording of the law (which gives precedence to de facto guardianship over curatorship), many courts refuse to establish a curatorship if they believe that there is a functioning de facto guardianship. This is the case analysed in the recent Supreme Court ruling.

Case law of the Spanish Supreme Court.

A woman who was acting as a de facto guardian for her husband (affected by a sudden cerebral illness) requested to be officially appointed as a curator. The reason was simple. She was tired of the obstacles she encountered in her daily life. Initially, she faced opposition from the lower courts, the Public Prosecutor’s Office, etc.

Finally, the Supreme Court of Spain has ultimately ruled in her favour. The court’s stance is clear. Although the law prioritises de facto guardianship, this provision should be interpreted flexibly. When, based on the specific circumstances of the case, a de facto guardianship is not sufficient to assist the incapacitated person, a curatorship must be established, to ensure the wellbeing of the impaired.

Conclusion

At White Baos Abogados, we specialize in support measures for people with disabilities or impairments, granting a proactive power of attorney for instances of dependency, etc. Feel free to reach out to us for professional legal guidance.

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