Do you have a family member in Spain with judicially modified capacity? Do you need to protect the estate in Spain of that legally disqualified person? In the following lines, our English speaking litigation lawyer in Marbella will give an approach to the judicial procedure, to be carried out in Spain, for the protection of the estate of people with disabilities.
Legal regulation in Spain to protect the estate of a person withdisabilities in Spain
The regulation established in the Spanish legal system comes to culminate in Spanish Law 41/2003 of November 28, on the protection of the property of persons with disabilities. This Spanish law was born as a result of the constitutional requirement of article 9.2 to promote the real and effective participation of all citizens and their involvement in political, economic, cultural and social life, in relation to the provisions of article 49 of the same constitutional text.
This Act contains a set of provisions relating to the assets of persons with disabilities.
It determines the norm as beneficiaries, these being people who suffer from a mental handicap equal to or greater than 33%, or physical or sensory handicap greater than 65%.
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For its constitution, it may be carried out by parents, guardians or custodians, the de facto guardian, as well as any person who has a legitimate interest, as well as the disabled person himself, who may request the constitution by simultaneously offering a contribution of goods and rights sufficient for this purpose.
The assets will be constituted in a public document or in a judicial resolution. This document must include the initial inventory of assets and rights, the rules of administration and control, and any other provisions deemed appropriate. The contributions may also determine, at the time of their contribution, the destination of such property or rights or, where appropriate, their equivalent after the assets have been extinguished in accordance with Article 6.
The formalisation and limitation mentioned above shall be taken into account in the civil, property and commercial registers, where applicable.
Regarding the form of such protection, Title II of Law 15/2015, of July 2, on voluntary jurisdiction, configures the files of voluntary jurisdiction in matters of persons, dedicating Chapter VI to the protection of the assets of persons with disabilities, comprising 6 articles, although the latter are intended for a procedure of access to personal privacy and self-image.
Its scope of application is the same for the constitution of the patrimony; the approval of contributions; the appointment of the administrator; the establishment of exemptions and the requirement to obtain judicial approval to carry out acts of administration, taxation or others related to the goods and rights of the patrimony; the substitution of the administrator; the change of the rules of administration; the establishment of special measures for the control; the adoption of precautions; the extinction of the protected patrimony and any others related to this patrimony.
The first instance Court in Spain of the domicile or residence of the person with a disability shall be competent to hear this procedure, and the Public Prosecutor’s Office alone shall be empowered to promote it, without prejudice to the fact that the latter may also act on the basis of a complaint.
The application, processing and resolution of the file, once initiated, will be processed according to the rules of the oral procedure after which the judge will issue the appropriate resolution, with the content required by the rule. This resolution may be appealed in both cases, with the exception of the appointment of the administrator.
All of the above demonstrates the technical complexity of the constitution, administration and extinction of the assets of persons with disabilities in Spain. Our procedural lawyers in Spain of our firm WeLex, will assist you in the constitution of the patrimony as well as in its administration and extinction, accompanying you in its management.
