A constitution of a protected patrimony is a notarial document that allows the creation of a patrimonial unit destined to protect and satisfy the present and future financial needs of a disabled or dependent person.
The beneficiary of the protected patrimony does not have to appear at the notary's office. It is sufficient to provide his or her identification data (normally a copy of his or her ID card). In case the beneficiary of the protected patrimony to be constituted is a minor child, the FAMILY BOOK must also be provided.
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.
A protected patrimony is an institution provided for in civil legislation, by virtue of which it is possible to create a set of assets intended to meet the present and future vital needs of a person suffering from a handicap or disability.
Thus, as any observer can appreciate, when a person suffers a handicap or disability, especially in high degrees, the same, in many occasions, will imply an impossibility to develop a labor activity that allows him/her to obtain income with which to take care of his/her vital needs, with which, this can entail serious economic difficulties, since in most occasions, the handicapped or disabled persons, besides the basic needs that any person can have (as for example housing, food, clothing, etc.), will also have additional needs in the form of care, specialized attention, medicines, etc., in addition to the basic needs that any person can have (such as housing, food, clothing, etc.).) will also have additional needs in the form of care, specialized attention, medicines, etc., which may involve additional costs, which can involve very high additional costs.
In view of the above, this figure intends to contribute to alleviate this situation, creating for this purpose an instrument by means of which any person (which normally will be the direct relatives of the disabled or handicapped person) can make contributions of assets or rights (such as real estate or money) with the objective that such assets or their yields can be destined to satisfy the vital needs, both present and future, of that disabled or handicapped person, thus assuring that such person will have the capital or income necessary to cover all his/her needs, both now and in the future, The purpose of such contributions is to ensure that the disabled or handicapped person will have the necessary capital or income to cover his or her needs, both now and in the future.
Consequently, with this protected patrimony, the interested parties will be able to affect those assets or rights that are contributed to the attention of the vital needs of the disabled or handicapped person and, likewise, enjoy a series of tax benefits associated with this figure, which will be developed below.
A protected patrimony, as indicated above, is an instrument designed to offer patrimonial and economic protection in favor of a person who suffers from a handicap or disability.
Therefore, in the event that a family has one of its members affected by a handicap or disability, the constitution of this protected patrimony can be a useful and adequate instrument to ensure the economic needs of this family member, both present and, above all, future, so that, by affecting a series of assets or capital to cover the vital needs of this person, we will ensure that he/she will have the necessary funds to ensure an adequate life, at all times, thus minimizing the risks that may occur in the future.
<ejemplo>Así pues, si unos padres sólo tienen un hijo, y éste está afectado por una minusvalía o discapacidad, cuando esos padres alcancen una edad avanzada, pueden plantearse constituir un patrimonio protegido a favor de su hijo, aportando al mismo su vivienda y sus ahorros para que, al fallecer éstos, todos estos bienes sean destinados a sufragar los gastos que sean necesarios para asegurar unos cuidados adecuados para su hijo el resto de su vida.<ejemplo>
Regarding the regulation of protected patrimony, it is necessary to point out that, in fact, two different regulations coexist at present, namely:
Thus, as can be seen, in the Catalan case (which is the place where this notarial office is located), two different regulations coexist, which will have great relevance, because depending on the regulation chosen for the constitution of the protected patrimony, this will have relevant consequences, both in terms of its nature and its tax treatment.
In any case, in view of the location of this notarial office, and taking into account that our website has already published an article on the analysis of the protected patrimony from the point of view of the state regulations (which you can access at HERE), this entry will focus on analyzing the characteristics of this figure from the point of view of the autonomous community regulations.
In accordance with Catalan legislation, they may be beneficiaries of a protected patrimony (article 227-1.1 CCCat):
To accredit the degree of disability or dependency of the beneficiary of the intended protected estate, it will be necessary to provide (article 227-1.2 CCCat):
In accordance with the Catalan regulations (article 227-2 CCCat), the following legal characteristics of the protected patrimony must be taken into account:
In accordance with Catalan legislation, the protected patrimony can be constituted by any person, including the beneficiary himself.
The constitution of the protected patrimony must be carried out by means of a public deed authorized before a Notary Public, in which it will be stated:
Likewise, the articles of incorporation may contain other provisions relating to the protected assets (with special reference to the rules governing their administration), as well as the powers of disposition of the administrator and the guarantees, if any, that the latter must provide.
Finally, if the incorporators so wish, they may also establish the destination of any remaining assets, if any, at the time the protected patrimony is extinguished.
The administration of the protected patrimony will be in the hands of the natural or legal person designated in the deed of incorporation of the protected patrimony, so that, for example, it can be a relative of the beneficiary, or a social entity dedicated to the assistance of dependent or disabled persons.
Regarding the administration position, its management and the vicissitudes of the position, it is necessary to highlight the following issues:
In order to ensure that the administrator of the protected patrimony carries out an adequate management of this, the law determines a series of control mechanisms that must be taken into account. Thus:
In accordance with Catalan civil law, the protected patrimony is extinguished for any of the following reasons:
In all these cases, the extinction of the protected patrimony will entail:
Likewise, I would like to point out that, if after the liquidation of the protected patrimony, a remainder is left, it will be given the destination established in the deed of incorporation, so that the assets, for example, may revert to the incorporator or his heirs, taking into account that, if nothing is established in this respect, the remainder will revert to the latter.
Indeed, if the assets comprising the protected patrimony are real estate, such protected patrimony may be registered in the Property Registry, in which case, the powers granted to the administrator, as well as the causes for the extinction of the protected patrimony and the destination, if any, established for the remainder, will be stated in the registration made.
The same shall apply in the case of other types of assets that have access to other types of public registries.
In relation to the tax treatment of protected assets, it is here where one of the great differences between state and autonomous community regulations appears, since the tax benefits applicable to this figure differ notably depending on the type of regulation.
Thus, if the protected patrimony is constituted under the protection of state regulations (Law 41/2003, of November 18, 2003), the following tax benefits, among others, may be applied:
On the other hand, in the case that the protected patrimony is constituted under the Catalan law, these tax benefits, as far as Personal Income Tax is concerned, are not applicable, since the Personal Income Tax Law only provides for their application when the constitution is carried out under the protection of the state law.
Thus, in the Catalan case, more limited tax benefits will be applicable, provided for in the Catalan Law 2/2016, of November 2, on urgent modifications in tax matters, of which the following are noteworthy:
The original and valid copy of the original must be provided
Providing for this purpose the corresponding administrative certificate or the final court judgment of the beneficiary's disability.
