‘Capacity of a person’ is a legal term to designate the ability to exercise legal rights, duties and obligations. For example the ability to make donations, entering into contracts, writing a valid will and getting married.

When a person is deemed incapable, he cannot exercise partially or totally his right, duties and obligations. In Spain a person can be declared incapable only in cases of a persistent physical or mental illness or a deficiency that prevents a person from governing himself. Only a court judgement can legally declare a person incapable. A judge will take the decision based on the persons circumstances and extensive medical and psychological reports with the objective to protect his best interests.

Minors can be incapacitated only if there is reasonable confidence that the cause of incapacitation will continue after coming of age.

Incapacitation and all related rules are regulated by the Spanish civil code in article 199 to article 302.

The process of incapacitation:

Article 757 of law 1/2000 specifies who can initiate the legal process of incapacitation. The process can be requested by the person Incapacitated, one of his close relatives or by the public prosecutor. In this last case anyone will be able to inform the prosecution and present evidence that will give grounds to the process of initiation.

Once the process starts 3 reports have to be prepared:

The medical examination report. This will be mandated from court and will be prepared by a psychiatrist, a psychologist or another medical specialist for physical incapacities. This is the most important report and will be instrumental to the judge decision.

The interview by a judge with the alleged incapacitated. This is probably the best guarantee for the person as he will be able to express his point of view. The judge will also be able to assess possible conflict of interests by the people requesting the incapacity.

The interview by a judge with the relatives. This is an additional piece in order to draw a psychological profile of the person.

One of the objects of the judge will be to find out if the people requesting the incapacity are acting in the best interest of the alleged incapacitated or if they have conflict of interest.

Guardianship, conservationship and judicial defenders:

According to the level of incapacity the judge will assign to the incapacitated person a guardian (in Spanish “Tutor”), a conservator (in Spanish “Curador”) or a judicial defender. The differences between the three are substantial, as the guardian will have extended authority acting in full name and right on behalf of the incapacitated person and he will be able to manage all the assets. The conservator instead will have much more specific responsibilities that will be defined by the judge. In general the responsibility of the conservator will be limited to specific patrimonial matters, for example the sale and purchase of real estate. The judicial defender will be named in cases where the guardian or the conservator is involved in a conflict of interest or when they fail to perform their duties.

The public prosecutor will supervise the actions of guardians and conservators and may request detailed reports at any time. The list of responsibilities are very long and, if the prosecutor thinks that the guardian or the conservator is failing his duties he can remove him and temporarily name a judicial defender until a new guardian is named.

Guardians and conservators appointment:

At the discretion of the judge there will be the following order of preference for guardians or conservators:

A person designated by the incapacitated person

The spouse living with the incapacitated

The parents

One of the persons designated as beneficiaries in a testament prior the incapacitation procedure

A descendant or any other relatives designated by the judge

Any other person considering the connections with the incapacitated and his best interests.

There are several conditions for ineligibility and the judge will carefully assess the conduct of the candidates. The judge may also restrict the access of the guardian to specific assets like money, jewellery, securities or documents.