Judicial incapacitation is a process by which a person seeks a sentence that declares another natural person against whom the procedure is directed as incompetent, thus limiting their capacity to act.
Judicial incapacitation is a civil proceeding in which one party asks the judge to limit another person’s ability to act. Always a natural person, legal persons do not have the capacity to act, they have legal personality. Incapacitation is a civil status of a person and has to be declared judicially, that is why this type of procedure exists.
No one can be declared incompetent without a judicial sentence.
This process can also be used to reverse the procedure, that is, request that the full capacity to act of the person who was restricted be restored.
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The process enjoys all the guarantees, and despite being a civil process, it follows a contentious-administrative course. What does this mean? That it is not a typical civil process, where two parties are confronted by different claims.
This process is the appropriate channel to protect the person with a disability and who needs a judge to declare their incapacity so that they can receive the corresponding support. This is so because the capacity limitation suffered by the legally incapacitated person has to be completed by another person. What institutions are those that complement the disability of the incapable? Guardianship and conservatorship.
- Guardianship: institution designed to complement the ability to act in the economic and personal sphere of people declared incompetent.
- Guardianship: institution designed to complete the ability to act only in the sphere of economic activities of people declared incompetent.
For what reasons can this incapacitation be requested? Illness, physical or psychological deficiencies that prevent the normal development of the person’s life.
Parts of the incapacitation
The parts that make up this process are:
- Active legitimation – Who can start the process?: The process can be started by the incapable person, the spouse, descendants or ascendants, and even the siblings of the incapable person. Any of them can start it with no preference of one over others. The disabled person himself can also promote this type of procedure.
- Passive legitimation – Who is the person against whom this process is directed?: a natural person who, according to the actor, is in a position to request judicial incapacitation. The presumed incapable can go with his own lawyer and solicitor, in case of not going with defense, it will be the Public Prosecutor’s Office who will be instituted as defender.
Declaration of judicial incapacitation
Only the judge can establish whether the capacity of the natural person should be modified. The judge will declare the capacity situation by sentence.
This sentence can have several modulations:
- Declare the complete and absolute impossibility of the person to govern himself, total incapacity.
- Declare a certain degree of impossibility of the person to lead their daily life. The judge has to modulate for which acts the legally incapacitated person will be able to make decisions by himself and for which his representative will have to act. For example, the sentence may indicate that the person has full capacity to decide if he wants to acquire movable property, but for high-risk investments he does not have sufficient capacity. The disability declaration is adjustable.
- Once this sentence has been issued, you can return to this process to request a modification of the sentence, either due to the improvement of the person declared incapable or due to worsening. In this way, the judge will have to modulate the incapacitation again.
