The deed of appointment of assistance is the instrument by which a person with a disability (or who anticipates that he or she may become disabled in the future) may appoint an assistant to help him or her perform all acts of his or her life in which he or she needs support or assistance in order to perform them satisfactorily.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
Through the figure of assistance, a person who needs support for the exercise of his legal capacity (or who foresees that he may need it in the near future), can obtain the designation of a third party, who will be called assistant, who will have the transcendental task of assisting him in all those areas of life in which he requires it, thus guaranteeing the exercise of his legal capacity under conditions of equality.
In practice, as we can see, this assistance can relate to many different areas of a person's life:
<ejemplo>Así pues, por ejemplo, en el caso de una persona que sufra una discapacidad física o sensorial, (supuestos de tetraplejia, ceguera, etc.), las necesidades de asistencia pueden centrarse más en el ámbito de su cuidado personal (como por ejemplo su higiene, su alimentación, el mantenimiento de su hogar, sus cuidados médicos, etc.).<ejemplo>
<ejemplo>Por su parte, personas que sufran discapacidades psíquicas (como una esquizofrenia), pueden necesitar apoyo en ámbitos más propios de la gestión de su economía o patrimonio (como la gestión de su dinero, la compra o venta de un inmueble, etc.).<ejemplo>
<ejemplo>Mientras que, en determinadas ocasiones, ciertas enfermedades o síndromes, dada su gravedad o intensidad, requerirán de una asistencia integral del discapacitado, como en el caso de un enfermo de alzhéimer en estado avanzado.<ejemplo>
On this basis, and based on the key idea that, as mentioned above, assistance is based on the principle of respect for the rights, preferences, autonomy and will of the disabled person or person in need of support, through this figure, the person in question will receive the appropriate assistance, adapted to his or her concrete and specific needs, thus guaranteeing respect for his or her autonomy of will and the protection of his or her personal and patrimonial interests.
Thus, the assistant, as his own name indicates, must assist the disabled person in all those areas in which this has been determined, but always under a premise of support or accompaniment, that is, the assistant, as a general rule, must always act accompanying or assisting the disabled person, trying to facilitate the realization or understanding of the act, procedure or legal business to be formalized and, also, consulting with the disabled person which are his preferences and wills in this regard, to take them into account in the decision to be adopted. On the other hand, in those cases in which he/she cannot express them directly, he/she must take into account his/her personal wishes and preferences based on his/her personal knowledge and life history.
<ejemplo>Así pues, por ejemplo, si la persona necesitada de apoyo (en este caso, pongamos, una persona mayor con una demencia senil incipiente) ha de firmar con su banco un depósito a plazo fijo de 50.000 euros, esta persona necesitada de apoyo, junto con su asistente, acudirán a su banco, a los efectos de recibir las explicaciones detalladas del empleado de dicha entidad. En este caso, el asistente, acompañando a su asistido, le explicará de forma comprensible y adaptada el contenido de ese contrato, y una vez comprendido el mismo por el discapacitado, dicho contrato será suscrito por él mismo, si efectivamente ésta es su voluntad.<ejemplo>
<ejemplo>Como vemos pues, el asistente, en este acto, no representa al asistido ni actúa en su nombre, sino que lo acompaña y le ayuda para comprender adecuadamente el acto en cuestión, para que éste, por sí solo, lo pueda protagonizar y formalizar él mismo.<ejemplo>
On the contrary, as we will see, in the institution of assistance, the representative actions of the assistant will be the exception, so that the assistant will only be able to act in a representative manner (that is, alone, in the name and on behalf of the disabled person), when expressly determined by a Judge, and only for those specific acts that are established.
<ejemplo>Así pues, si por ejemplo, una persona discapacitada sufre una grave esquizofrenia que le impide comprender la realidad y las consecuencias jurídicas de sus actos, es muy probable que el Juez que deba resolver el caso acuerde un régimen de asistencia, con facultades representativas en todo lo concerniente a la esfera económica y patrimonial del discapacitado, de modo que, siguiendo ese ejemplo anteriormente propuesto, el asistente, una vez oído el parecer del discapacitado (para respetar su voluntad y deseos si ello es posible, claro está), acudirá el sólo al banco a formalizar ese contrato de depósito a plazo, en nombre y representación del discapacitado, en ejercicio de dichas facultades representativas de asistente que le ha concedido un Juez.<ejemplo>
As is well known, people with disabilities (whether physical, sensory, mental, etc.) sometimes need the support or assistance of third parties to ensure the proper care of all their affairs (whether it is their hygiene, home care, food, management of their household economy, care of their assets, etc.).
On this basis, the truth is that in Spain, until a few years ago, the protection of persons with disabilities was mainly articulated through a system of substitution (that is, of judicial modification of capacity), in which, on many occasions, the disabled person was subjected to a regime of guardianship, curatorship or extended or rehabilitated parental authority, where, in essence, the representation of the disabled person was assumed, in its entirety, by a third person.
As we can see, this model was undoubtedly very disrespectful of the human rights and fundamental freedoms of the disabled, since in practice, on many occasions, it deprived them of active participation in decision making concerning them.
This regime, contrary to the provisions of the International Convention on the Rights of Persons with Disabilities of 2006(HERE you can consult it if you wish), was fortunately reformed and overcome in Spain through Law 8/2021(HERE you can consult it), in which the state legislator, proceeded to repeal this not at all recommendable regime, in favor of a system based on the accompaniment, support and assistance to disabled persons, thus granting them a greater degree of autonomy and capacity in making decisions that concern them, achieving a much more respectful result with the will and preferences of the disabled person or person in need of support.
However, as can be seen, this Law is a state regulation, not directly applicable in Catalonia, since in accordance with the Statute of Autonomy of Catalonia, this autonomous community has exclusive competences in matters of civil law. Therefore, in order to adapt this new regulatory reality, in Catalonia, in the year 2021, the autonomous Government, by means of Decree-Law 19/2021, of August 31(HERE you can consult it), proceeded to urgently modify, on an interim basis, its civil regulations on the matter.
In this new regulation, as indicated, the figure of assistance becomes the key institution for the protection of people with disabilities, in such a way that the old figures of guardianship, curatorship or extended or rehabilitated parental authority are eliminated from the Catalan legal system, which determines that, from now on, when a disabled person needs support for the exercise of his legal capacity, the legal institution that will respond to this will be the assistance.
In accordance with the Catalan civil law, the assistance can be constituted through two main ways, such as:
As established in Article 226-3 of the Civil Code of Catalonia, any person of legal age, in anticipation or appreciation of a situation of need for support, may appoint one or more persons to provide assistance.
As we see then, the Catalan law allows to constitute this assistance, in public deed before a Notary, to any person of legal age who is in one of the following two situations:
Any person of legal age in full use of his or her physical and mental capacities who, on the basis of his or her personal relationship with the person in need of support, or his or her personal and professional qualities and aptitudes, is suitable to provide such assistance, may be appointed as an assistant.
Indeed, the Catalan civil law allows the appointment of "one or more persons" to exercise the assistance, so that, in effect, it is possible to appoint two or more assistants, such as, for example, parents or two siblings.
In these cases, it is also possible to designate specific tasks to each assistant, so that, for example, one can focus on the personal care of the disabled person, and the other on the economic or patrimonial sphere.
In fact, the Catalan civil law expressly provides for this possibility, so that if the designated assistant is unable or unwilling to perform this function, the assistance will be assumed by the person designated as substitute.
Likewise, Article 226.3.3 of the Catalan Civil Code establishes that, in the event that several substitutes are appointed, and the order of substitution is not specified, preference will be given to those named in a subsequent document, and if there is more than one, the one appointed first.
As established in Article 226-3 of the Catalan Civil Code, the notarial deed of designation of the assistant may establish provisions relating to the operation and content of the appropriate support regime, including in relation to the care of his or her person.
The law also expressly establishes that control measures may be established as deemed appropriate to avoid situations of abuse, conflict of interest or undue influence.
Thus, for example, in the notarial deed of designation of assistance, provisions may be established regarding:
In any case, it is necessary to indicate that, as established by law, the exercise of assistance functions must correspond to the dignity of the person and must respect his or her rights, will and preferences.
That is the way it is. The Catalan Law determines that the designations of assistance granted in public deed must be communicated to the Civil Registry to be registered in the individual folio of the person.
In addition, they will also be communicated for registration in the Catalan Registry of non testamentary appointments of legal capacity supports.
Indeed, the Catalan law also provides that, in those cases in which assistance has been notarially constituted, but such assistance is insufficient to adequately protect the disabled person, supplementary or complementary measures may be adopted by judicial decision.
Likewise, the law also provides that, in those exceptional cases involving serious circumstances (such as risk of abuse, conflict of interest or undue influence), the Judge, by means of a reasoned decision, may disregard what was stated by the disabled person in his or her deed of appointment of an assistant, and thus establish alternative measures for his or her adequate protection.
Indeed, as indicated in a previous question, in addition to the notarial route, assistance can be constituted through a judicial resolution, in which a Judge so rules.
Regarding this second path, the following key elements should be noted:
In accordance with Article 226-5 of the Civil Code of Catalonia, legal acts that the assisted person makes without the intervention of the person assisting him/her, if such intervention is necessary in accordance with the voluntary or judicial measure of assistance, are annullable at the request of the person assisting, the assisted person and the persons who succeed him/her by inheritance within four years from the celebration of the legal act.
Of course. The persons entitled to request the constitution of the assistance can request its modification or revision if there is a change in the circumstances that motivated it, both in the case of the one constituted by notary, as well as the one established in court.
<ejemplo>Así pues, por ejemplo, si se ha constituido una asistencia en escritura pública, y se desea modificar cualquier extremo de la misma (como la persona o personas que prestan la asistencia, su alcance, las medidas de control, etc.) se puede acudir al Notario nuevamente a otorgar una nueva escritura al respecto.<ejemplo>
In accordance with Catalan legislation, assistance is terminated for the following reasons:
This question is undoubtedly very interesting, since at present, especially in Catalonia, there is confusion in this regard, for the reasons that will be explained below.
As I have explained in a recent article on the subject in my blog(HERE you can consult it if you wish), in the field of common Civil Law (that is, in the rest of Spain so that we understand each other), the star figure for the protection of persons with disabilities is the guardianship.
To this reality, we must add the circumstance that the de facto guardianship is a figure also regulated in the Catalan civil law, but with an outdated content (for example, full of references to incapacitation, already disappeared from our legal system as mentioned above).
Thus, this reality has led to some confusion as to whether, in the Catalan context, the protection of persons with disabilities or in need of support for the exercise of their legal capacity should be articulated through assistance or through de facto guardianship.
To resolve these doubts, nothing better than to resort to the clarifying case law of the Provincial Court of Barcelona (among many others, cite SAP 1932/2023, of March 9, ECLI:ES:APB:2023:1932), which states the following:
"We have said taking into account the regulation of the Civil Code of Catalonia with the reform introduced by Decree Law 19/2021 and the affectation that such reform has on the configuration of the de facto guardianship (not yet reformed):
As we see then, this jurisprudence, in my opinion, resolves very well the question, because as we see, the guardianship in fact, in the Catalan scope, is a subsidiary and informal figure to which is resorted in the sphere of the personal care of the disabled person, whereas, at the moment, it is a formalized measure, with capacities to act, in Catalonia, is the assistance, the star and most appropriate measure for the protection of the disabled person or the person in need of support for the exercise of his legal capacity, in Catalonia, is the assistance, since it is a formalized measure, with broader capabilities of action, and where the will, wishes and needs of the affected person can be better assessed.
Indeed, as indicated at the beginning of this section, the regulation of assistance introduced in Catalonia by Decree-Law is a provisional regulation, so that the Parliament of Catalonia has yet to approve a comprehensive reform of this section of Book II of the Civil Code of Catalonia.
In this sense, those interested in knowing the future lines of this reform, if they wish, HERE they can consult the text of the Preliminary Draft Legislation which is currently being processed.
To grant a deed of appointment of assistant, it will simply be necessary to contact our notary office (by phone, via web, by WhatsApp) and make an appointment on the day and time that best suits the interested party. On the agreed day and time, the grantor must simply go to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drafted on the basis of the minimum legal content required and the forecasts and needs of the client in question.
It is enough that the person goes to the notary's office with his/her valid ID card. In case the person is a foreigner, he/she must present before the notary his/her original and valid passport. In addition, if he/she has one, it is advisable to present the NIE together with the mentioned passport.
Name, surname, national identity card number, address and, if applicable, contact details (such as telephone or email).
Functioning, areas where assistance is required, how assistance is required, personal preferences, control instruments, etc.
