PROCEDURE
Support measures can be agreed on a preventive basis, voluntarily before a notary by means of a public deed or in the event of an assessment of a situation of need for support by a judicial procedure. The central idea is to provide the person with the support needed.
In terms of jurisdiction, the courts of the national territory may protect anyone who has its residence, with the objective jurisdiction being the courts of first instance and the territorial jurisdiction corresponding to the domicile of the defendant. In the event that there is a previous voluntary jurisdiction case, the competent court will be the court that has heard the case, unless the person with a disability subsequently changes residence; in that case, the judge of first instance of the new place of residence of the person with a disability will be the competent. Similarly, if the person’s habitual residence changes before the hearing is held, the proceedings will be referred to the court of the new place of residence.
The interested party, the closest family nucleus (spouse or partner, ascendant or descendant and siblings) and the Public Prosecutor’s Office when there is no close nucleus or when they have not filed the legal claim unless there are other ways of obtaining the necessary support, are entitled to file the application for support measures. Anyone who can demonstrate a legitimate interest may intervene in the proceedings. When a specific guardian -assistant in Catalonia- is requested, this person will be notified in order to make the necessary arguments on the matter.
The person with a disability shall be assigned a legal defender, unless they already have their own appointed defense and representation or their defense corresponds to the Public Prosecutor’s Office as it is not the promoter of the procedure.
Likewise, precautionary measures for the protection of the person with disabilities or its assets may be adopted at the request of a party, by the Public Prosecutor’s Office or ex officio. They shall always be adopted after hearing the person with disabilities, unless the emergency situation prevents it.
The following tests will necessarily be carried out by the Tribunal:
1) Interview with the person with disabilities. In this way, the judge will be able to know the situation in which the person finds himself, the needs he has, his wishes and who the person believes can provide him with the necessary support. It will take place in person and the Public Prosecutor’s Office will take part in it.
2) Hearing with the spouse or partner and the closest relatives of the person with disabilities.
3) Opinions of specialised professionals in the social and health fields are necessary in relation to the claims made, including socio-health reports and the previous examination of the forensic doctor.
If the application is filed by the person with a disability himself, the Court may not hold the required hearings if this is better to preserve his privacy, provided that he so requests and on an exceptional basis. If the judgement is appealed, these hearings shall be held again at the second instance.
The support measures shall be entered in the Civil Register and shall be reviewed every three years and, exceptionally, may be reviewed every six years.
