The Aspace Catalunya Foundation offered an informative talk on the draft law amending the Catalan Civil Code regarding support for the exercise of legal capacity in Catalonia (Gencat, 2024). The talk was given by Mr. Andrés Labella, father of a disabled daughter, lawyer and researcher at the Chair of Housing at the URV, and Ms. Silvia Alba, social worker at the Residence and Occupational Therapy Service at Aspace Montjuïc.
This preliminary draft is driven by the need to adapt Spanish and Catalan legislation to the New York Convention (BOE, 2008) on the rights of persons with disabilities. It introduces significant changes in the way support for people with intellectual disabilities in the exercise of their rights is understood and managed.
It should be noted that, as of today, the Catalan Civil Code has not yet been modified. However, the Fifth Transitional Provision of Organic Law 5/2024 (BOE, 2024), on the right of defense, is being applied, which represents a paradigm shift in judicial practice and requires adapting procedures to guarantee the rights of people with disabilities. This explains why incapacity sentences are already being modified and support assistance is being introduced.
1. The New York Convention: the international legal framework
The New York Convention (United Nations, 2006) establishes an international legal framework for the protection and promotion of the rights of persons with disabilities. In Spain, the Convention entered into force on May 3, 2020 and is integrated into the legal system (Spanish Constitution, 1978, Art. 10.2 and Art. 96).
The fundamental principle of the Convention is the recognition of the equality of all people, regardless of their abilities. In this sense, it promotes a paradigm shift in the conception of disability, which is not an inherent characteristic of the person, but the result of the interaction between people and the social-environmental barriers that prevent them from fully participating in society, on an equal basis.
2. The support model: a new paradigm
The reform of the Catalan Civil Code introduces a new model of support for legal capacity, moving away from the traditional model of incapacity. The new model is based on the following principles:
2.1. Need:
- Support should only be provided when it is truly necessary for the person with a disability.
- A thorough assessment of the person's individual situation must be carried out to determine whether they need help making decisions and exercising their rights.
2.2. Proportionality:
- The type and intensity of support must be proportional to the person's needs.
- Specific support measures must be established for each situation, avoiding unnecessary restrictions on their autonomy.
2.3. Will:
- The will and preferences of the person with a disability must be respected at all times.
- Support must be based on the person's free and informed decision-making, allowing them to actively participate in making decisions that affect them.
2.4. Minimum intervention:
- Support should be as unobtrusive as possible in the person's life.
- Informal support measures, such as help from family or friends, should be prioritized before adopting more formal measures, such as guardianship or curatorship.
2.5. Temporality:
- Support measures must be temporary and reviewable.
- They should be reviewed periodically to ensure that they remain appropriate to the person's needs and that they do not unnecessarily restrict their autonomy.
2.6. Authority protection:
- The judicial authority must supervise the support measures to ensure that the rights of the person with a disability are respected.
- Control mechanisms must be established to prevent abuse and ensure that decisions made on behalf of the person are in their best interests.
3. Type of support
The reform provides for two types of support:
- Non-formalized supports: provided informally by people from the person's natural environment, who know their desires and needs well.
- Formalized supports: established through a legal document, such as a power of attorney or assistance.
3.1. Preventive power
The preventive power of attorney is a public deed that allows a person to plan their will and preferences for the future in advance, in case they are unable to communicate them.
3.2. The assistance
Assistance is a support measure formalized through notarial or judicial means. There can be three types of assistance:
- Collaboration assistance: In this type of assistance, the assisted person makes decisions for themselves, but has the support of another person (the assistant) to better understand the options, assess the consequences and make the decision most appropriate to their interests and desires. The assistant acts as a facilitator of the decision-making process, providing information, explanations and advice, but without replacing the will of the person with a disability.
- Co-decision assistance: In this case, the person with a disability and the assistant make decisions together. That is, both people actively participate in the decision-making process, contributing their opinions, knowledge and experiences. Co-decision-making implies a shared commitment to decision-making, seeking a balance between the will of the person with a disability and the support they need to make the best possible decision.
- Representation assistance: In this type of assistance, the assistant acts on behalf of the assisted person to carry out certain legal acts such as: signing contracts, carrying out administrative procedures or making medical decisions. Representation is only used when it is strictly necessary and when the assisted person cannot make the decision for themselves, having exhausted all types of support. It is important to remember that representation must be proportionate to the needs of the person and periodically reviewable to ensure that it remains the most appropriate support measure.
4. Protected Heritage
- What is its purpose? Protected assets are a property protection mechanism for people with disabilities that aims to guarantee that their economic needs are covered and improve their quality of life.
- How is it constituted? It is constituted by means of a public deed before a notary, which designates the assets that are contributed to the protected heritage and its administrator.
- How is it administered? The administrator of the protected assets is the person responsible for managing the assets and income to meet the needs of the person with a disability.
- Does it have tax benefits? Contributions to protected assets may have tax benefits for the person who makes them.
- When does it go out? The protected heritage is extinguished by the death of the beneficiary, loss of disability, resignation of the beneficiary or upon reaching the set term.
5. Will
- What is a will? It is a very personal and free act, through which a person orders the fate of their assets after their death.
- Who can make a will? All people with legal capacity can make a will, including people with disabilities who have the necessary support.
- What can we put in a will? The will may contain provisions regarding inheritance, legacies, designation of heir, appointment of an executor, etc.
- What is exemplary substitution? It is a figure that allows parents to designate an heir for their disabled child in the event that the child dies without a will. This figure is only applicable to people with disabilities who have formalized support (guardian or assistant).
The will comes into effect upon the testator's death and can be modified as many times as desired while the testator is alive.
6. Conclusion
The reform of the Civil Code of Catalonia, beyond the legal modifications, represents a profound change in our way of understanding disability and supporting people who experience it.
There has been a shift from a model focused on incapacity and the substitution of people's will to a model based on respect for autonomy, legal capacity and decision-making, desires and life projects.
The people who provide support, whether formal or informal, become key to ensuring that people with disabilities can exercise their rights and participate fully in society.
This reform is a social and collective challenge to accompany people in developing their life project with fullness and freedom.
Author: Silvia Alba Ríos
Social Worker at the Aspace Catalonia Foundation
Bibliography
- Instrument of Ratification of the Convention on the Rights of Persons with Disabilities, made in New York on December 13, 2006. Official State Gazette No. 96 (2008). Retrieved February 17, 2025, from https://www.boe.es/buscar/doc.php?id=BOE-A-2008-6963
- Organic Law 5/2024, of November 11, on the Right of Defense. Official State Gazette No. 275 (2024). Retrieved February 17, 2025, from https://www.boe.es/buscar/act.php?id=BOE-A-2024-23630
- Spanish Constitution (Art. 10.2 and Art. 96). (1978). State Official Bulletin no. 311 (1978). Retrieved February 17, 2025, from https://www.boe.es/buscar/act.php?id=BOE-A-1978-31229
- Generalitat de Catalunya. Draft law amending the Civil Code of Catalonia regarding support for the exercise of legal capacity of people. Open Government and Good Governance (2024). Retrieved February 17, 2025, from https://governobert.gencat.cat/web/shared/Transparencia/normativa-en-tramit/JUS/en-tramit/codi-civil-suports-persones/text-versio-230406.pdf
- United Nations. (2006). International Convention on the Rights of Persons with DisabilitiesGeneral Assembly.
