Risk situations and protection measures

Legal incapacity is a judicial act which modifies a person’s legal status, making them subject to a regimen of protection. It is not the illness or deficiency in itself which makes incapacity status possible; rather, it is the inability to self-govern.

The idea is that it compensates for the deficiencies of those who, lacking sufficient capacity to manage alone, find that they need somebody to represent them or to reinforce their capacities. Incapacity, then, enables those who are in need.

The incapacity process is requested before a judge and may be initiated by a member of the immediate family. If there are no immediate family members, any person who is familiar with the situation can communicate it to the public prosecutor, who will initiate the process in that instance.

In this document, a person states their desires and instructions about health and social care that they want to be respected if they find themselves in a situation in which, due to different circumstances relating to their physical and/or mental health, they are unable to express them personally.

The living will document helps families as well as healthcare professionals to identify the best decisions for a person in situations where they are unable to express their own will.

The document is formalised before a notary or in writing before three witnesses. In the latter case, the witnesses must be of legal age, with full capacity to act and a minimum of two of them must not be related to the person either by marriage, de facto relationship, or be related by two or fewer degrees of consanguinity or affinity; nor may they have a financial relationship.

In order to establish power of attorney, guardianship or living wills, the notary requires that people going to formalise the cession of powers be in sound mind at the time when the proceedings are carried out; this means that in the majority of cases, this can only be done during the early stages of cognitive deterioration.

Anybody in possession of consciousness and intentionality can name before a notary somebody to be their guardian in the event that they are declared not to have mental capacity.

The person can also exclude other specific people from these functions, appoint substitutes and also establish how they want to be cared for and how they want their assets to be administered. Autotutela is a form of guardianship which today only exists in Catalonia, and takes place before a notary.

Power of attorney consists in the person with cognitive deterioration giving to another person(s) the power to dispose of particular assets or rights. This is a way to protect the person at an economic level.

As deterioration advances and evolves, the person loses the ability to perform certain tasks, the understanding and consequences of their actions and the notion of the value of money.

However, from a legal point of view, the person with dementia continues to have full legal capacity. This can lead to serious problems for the person and their family.

There are different legal instruments to protect people who have cognitive deterioration or dementia. The most appropriate will be that which offers them the protection they need, taking into account that there must be a balance between their safety and their liberty.