After having been approved by the Congress of Deputies on May 20 as a draft bill, Law 8/2021, of June 2, reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity, was published in the Official State Gazette (BOE) on June 3, 2021.
Its entry into force was set for three months after its publication, that is, on September 3, 2021.
This reform of civil and procedural legislation seeks to take a decisive step in adapting our legal system to the International Convention on the Rights of Persons with Disabilities, adopted in New York on December 13, 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 obliges States Parties to adopt the necessary measures to provide persons with disabilities with access to the support they may need in exercising their legal capacity.
Thus, it establishes the shift from the system that had been in force in our legal framework—where substitution predominated in decision-making affecting persons with disabilities—to one based on respect for the will and preferences of the individual, who, as a general rule, shall be responsible for making their own decisions.
Structure of the law and legislative amendments
This Law consists of eight articles, two additional provisions, six transitional provisions, one repealing provision, and three final provisions.
Article One amends the Notarial Law in eight sections.
Article Two, with sixty-seven sections, amends the Civil Code.
Article Three affects the Mortgage Law and consists of nine sections.
Article Four reforms Law 1/2000, of January 7, on Civil Procedure, with twenty-nine sections.
Article Five amends Law 41/2003, of November 18, on the patrimonial protection of persons with disabilities and on the amendment of the Civil Code, the Civil Procedure Law, and the Tax Law for this purpose, and is divided into six sections.
Article Six amends Law 20/2011, of July 21, on the Civil Registry, and is divided into ten sections.
Article Seven, referring to Law 15/2015, of July 2, on Voluntary Jurisdiction, is structured into twenty sections.
Article Eight, referring to the Commercial Code, is structured into three sections.
Furthermore, the First Final Provision introduces amendments to the Criminal Code, and the Sole Repealing Provision repeals, in its section 3, articles 299 bis and 301 to 324 of the Civil Code.
The reform of the Civil Code
From the Preamble of this law, we can gather that the reform introduced by Article Two in the Civil Code is the most extensive and significant, as it lays the foundation for the new system based on respect for the will and preferences of the person with disabilities.
Title XI of Book One of the Civil Code is rewritten and now reads: “On measures of support for persons with disabilities in the exercise of their legal capacity.” The central element of the new regulation will no longer be the incapacitation of those not considered sufficiently capable, nor the modification of a capacity inherent to the human condition and, therefore, not subject to modification. On the contrary, the core idea of the new system is the provision of support to the individual who requires it—support which, as the aforementioned 2014 General Comment recalls, is a broad concept encompassing all types of actions: from friendly accompaniment, technical assistance in expressing will, the removal of architectural and other barriers, counseling, and even the delegation of decision-making by the person with disabilities. It may also include, only when support cannot otherwise be provided and solely in such cases of impossibility, representation in decision-making.
“It is not, therefore, a mere change in terminology relegating the traditional terms ‘incapacity’ and ‘incapacitation’ in favor of more precise and respectful ones, but rather a new and more accurate approach to reality, recognizing something long overlooked: that persons with disabilities are holders of the right to make their own decisions—a right that must be respected. It is, therefore, a matter of human rights. Many limitations traditionally associated with disability have not arisen from the individuals themselves, but from their environment: physical, communicational, cognitive, attitudinal, and legal barriers that have curtailed their rights and the possibility of exercising them.”
The institution subject to the most detailed regulation is curatorship (curatela), the principal measure of judicial support for persons with disabilities. The very meaning of the word curatorship—care—reveals the purpose of the institution: assistance, support, and help in exercising legal capacity. Therefore, as a guiding principle and in line with limiting, as far as possible, representative actions, curatorship will primarily be of an assistive nature. However, in cases where necessary, and only as an exception, representative functions may be attributed to the curator.
Guardianship, as well as t...