The autocuratela is the notarial document that allows any person to anticipate an eventual situation of illness or incapacity that prevents him/her from governing him/herself, and, therefore, to determine which person he/she wishes to propose as curator to assist him/her in the exercise of his/her legal capacity, in the event that this appointment is finally necessary.
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.
The guardianship is an institution whose purpose is to operate as an instrument of support in the exercise of the legal capacity of disabled persons or those who, due to an illness or accident, have had their intellectual and volitional capacities impaired, in such a way that they require assistance to ensure adequate care of their personal and patrimonial interests.
Thus, when a person suffers from any of these circumstances, and is in need of this support or assistance, through the institution of guardianship, a person will be appointed, who receives the name of guardian, to watch over his personal and patrimonial interests, in a manner to be determined.
In relation to the same, it is necessary to indicate that this institution, after the reform operated recently in 2021 by the legislator, is the "ultima ratio" of the measures to be applied, since in accordance with article 269 of the Civil Code, the guardianship will only be constituted when there is no other measure of sufficient support for the person with disability. Thus, the guardianship will only be constituted when there are no other ways to ensure adequate attention to the personal and property affairs of the person in need of support, such as, for example, the de facto guardianship.
In relation to guardianship, it is also necessary to indicate that the new regulation of the institution, much more respectful of the rights of the disabled person or person in need of support, determines that it will be a measure proportionate and adapted to the needs of the person who requires it, always respecting his autonomy in the exercise of his legal capacity in all those areas where it is possible, and always trying to respect and take into account his will, wishes and preferences.
Thus, the judge who establishes the guardianship, when agreeing on the measure, must adequately justify the need for it, and also determine for which specific acts the assistance of the guardian is required. In addition, the new regulation determines that only in exceptional cases, when it is essential due to the circumstances of the person with disability or in need of support, it can be expressly detailed for which specific acts or legal business, the guardian may assume representative powers of the person with disability or in need of support.
<ejemplo>A modo de ejemplo, corresponderá nombrar un curador para la señora Cristina, pues la misma es una anciana de 80 años de edad a la cual sufre la enfermedad de alzhéimer en un estado avanzado, que le impide atender adecuadamente a sus cuidados personales básicos (alimentación, cuidado de la vivienda, higiene personal, etc.), así como la gestión de su patrimonio. En tal caso, el Juez que finalmente adopte la medida, deberá examinar a la señora Cristina y, a la vista de sus circunstancias concretas, estado psíquico y capacidades intelectivas presentes y futuras, deberá concretar quien asume este cargo de curador, y qué actos concretos podrá desempeñar este, o bien asistiendo, o bien representando a la señora Cristina.<ejemplo>
When the guardianship is constituted, the Judge who grants it will appoint the corresponding guardian, that is, the person designated to support the disabled person or person in need of assistance in the exercise of his or her legal capacity.
Thus, from that moment on, it will be the responsibility of the guardian to look after the personal and/or property interests of the person in need of support or assistance, in the terms and manner established in the judicial decision to be issued.
The constitution of the guardianship and the appointment of the guardian will be made by the competent Judge, by means of a reasoned decision, within the framework of the corresponding judicial process, which must be initiated either by the interested person himself, by his spouse or common-law partner, his descendants, ascendants, siblings or by the Public Prosecutor's Office (Article 757 of the Civil Procedure Law).
The law determines that the Judge, in constituting the guardianship and appointing the guardian, must first consider the proposal, if any, made by the interested person in a public deed, which is called a self-guardianship.
Thus, any person of legal age, in anticipation that in the future he may need the constitution of a guardianship in his favor(because, for example, he wants to anticipate a possible Alzheimer's disease that he may suffer, given that he has a family history), can go to a Notary and propose the person or persons that he wishes, if necessary, to assume this position of guardian.
In the event that this prior proposal is made by the person concerned, the Judge will then be bound to it, so that he/she must appoint the proposed person or persons as guardian or guardians, unless there are serious circumstances unknown to the person who established it that prevent this, which must be substantiated in a reasoned manner in the decision that is issued.
On the other hand, if there is no such prior proposal, the Judge will appoint the following persons as guardian, and in the following order (which may be altered, once the person who needs the support has been heard):
As it is logical, the advantages of designating in public deed the person we prefer as guardian are evident, because although it may be a cliché, we are the ones who know ourselves better (our tastes, preferences, personal affinities, etc.), so that, if previously, in anticipation of an eventual situation in which we need support or assistance, we already put on record the person or persons we prefer to assume our personal and patrimonial care.), so that, if previously, in anticipation of an eventual situation in which we need support or assistance, we already put on record the person or persons that we prefer to assume our personal and patrimonial care, when the case arises, the competent Judge to adopt the measure will be bound by our previous pronouncement, while, on the contrary, if this does not exist, the decision that the Judge adopts may not be the one preferred by our part.
<ejemplo>Imaginemos pues un padre que tiene dos hijos, respecto de los cuales, con uno de ellos tiene una muy buena relación, mientras que, con el otro, tiene una relación nula y conflictiva. Si ese padre realiza la propuesta de curador previamente en escritura pública, designando al hijo con el que tiene buena relación, llegado el caso, se asegurará que el Juez nombre a este como curador. Por el contrario, si no lo hiciere, corre el riesgo de que sea nombrado como curador ese otro hijo con el que tiene una relación conflictiva, el cual, probablemente no vaya a atender sus necesidades personales y patrimoniales de forma adecuada.<ejemplo>
In the Catalan case, the advantages are even more evident, since the autonomous regulations, as will be explained in a later question, determine that the designation made in a public deed is already constitutive and directly applicable, without the need for further judicial ratification, which means that the benefits are even greater.
In effect, by means of the deed of self-conservatorship, any person of legal age or emancipated, in anticipation of the concurrence of circumstances that may hinder the exercise of his legal capacity under equal conditions, may propose in a public deed the appointment of one or more persons for the exercise of the function of conservator, which, as already mentioned, will bind the Judge who in the future must make the decision, unless there are serious circumstances at that future time unknown when making the appointment that make it inadvisable to do so.
In relation to the self-cure deed, in addition, it is necessary to know the following questions:
In fact, the law allows for the proposal of substitutes, so that if the person proposed first is unable or unwilling to assume the position (for example, because he/she is deceased at the time of appointment), the position will be assumed by the following appointees.
Indeed, the law allows to delegate to the spouse or to another person the choice of the guardian, from among those listed in a public deed by the person concerned.
In fact, the Notary Public who authorizes the deed of self-custody will communicate it ex officio to the Civil Registry for its due record in the same.
This is correct. More than one guardian may be appointed, if the will and needs of the person who requires the support justify it, which will be the case especially in those cases in which it is necessary to separate the positions of guardian of the person and guardian of the assets into different positions.
Indeed, the guardian is entitled to remuneration, provided that the assets of the disabled person allow it, as well as to reimbursement of justified expenses and compensation for damages suffered without fault on his part in the exercise of his function, amounts that will be paid from said assets.
It is up to the judicial authority to set the amount and the way of collecting it, taking into account the work to be done and the value and profitability of the assets.
To be a guardian, it is simply required to be of legal age and, in the judgment of the judicial authority, to be "fit" for the proper performance of the function in view of the specific circumstances of the case.
On the contrary, they may not be curators:
In addition, the judicial authority may not appoint a guardian, except in duly motivated exceptional circumstances, to the following persons:
In the event that no family member, friend or person of trust is available to propose for the position of guardian, the law also allows proposing for the position a legal person, that is, a foundation or other type of legal person, non-profit, and whether public or private, whose purposes include the promotion of autonomy and assistance to persons with disabilities.
The guardianship shall terminate upon the death or declaration of death of the person with support measures.
Likewise, the guardianship may also be terminated by court order when this support measure is no longer necessary or when a more appropriate form of support is adopted for the person under guardianship.
In this matter, the Catalan civil law presents notorious differences in relation to the regulation of the common civil law, because although there is a figure analogous to the autocuratela, which is called "notarial designation" of assistance (articles 226-1 and following of the Book II of the Civil Code of Catalonia), it presents a notable particular characteristic, because, unlike what happens with the autocuratela (which, broadly speaking, is a proposal that must subsequently be ratified by the judicial authority), in the Catalan case, the notarial designation of a person for assistance in the exercise of legal capacity under conditions of equality does not require subsequent judicial ratification, so that, simply, with the appointment in a public deed, when the time comes, the position can be exercised in its fullness.
Thus, in accordance with the aforementioned regulations, a person of legal age may request the designation of one or more persons to assist him/her, if he/she needs it in order to exercise his/her legal capacity under equal conditions.
As mentioned above, this constitution of assistance can be carried out:
Thus, as indicated above, any person of legal age, in a public deed, in anticipation or appreciation of a situation of need for support, may appoint one or more persons to provide assistance.
In this deed, likewise:
In addition, it is necessary to indicate that the granting of this type of deed is fully revocable, so that a subsequent act of designation of assistance revokes the previous one in everything that modifies it or is incompatible with it.
Finally, we would also like to point out:
Indeed, in addition to the deed of self-care or appointment of an assistant, the law also allows the granting of so-called preventive powers of attorney in anticipation of a supervening loss of capacity. In this case, it is a power of attorney that a person grants in favor of another, so that the latter can take care of all his or her affairs, in the event that, due to a persistent illness or impairment of a physical or mental nature, he or she cannot govern himself or herself.
Thus, this power of attorney, when granted, does not allow the attorney-in-fact to perform any act in the name and on behalf of the principal, but will only be effective in the event that the principal, due to an illness or disability, no longer has fully functioning mental capacities and needs this assistance so that someone can adequately look after his care and assets.
This instrument can be useful, since it can be used from the very moment this loss of cognitive abilities occurs, without the need to follow a judicial procedure for the constitution of a guardianship, which can take several months, hindering the proper care of the affairs of the person in question.
For more information on this type of power of attorney, please refer to the section on our website.
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