In Catalonia, we have the legal figure of the assistant, regulated in articles 226-1 to 226-8 of the Civil Code of Catalonia.

The function of the assistant is to provide the necessary support to the assisted person in order to allow this person to exercise its legal capacity in equality conditions. The assistant will exercise its functions respecting the dignity, rights, will and preferences of the person. It can be appointed voluntarily in anticipation or appreciation of a situation of need by the person of legal age who requires support by means of a public deed notarized or judicially trough a voluntary jurisdiction file of support measures for persons with disabilities. One or more assistants may be appointed.

Regarding the judicial designation, it can also be requested by legitimated persons if there is no power of attorney in force that can provide the required support. If the person assisted is unable to express its will and preferences and has not granted any document, the designation of the assistant will be made by means of an interpretation in accordance with its will, wishes and preferences, in accordance with the person’s life history, previous manifestations and the information held by the persons of its trust.

As for the notarial designation, it must be made by the person concerned in anticipation or appreciation of the situation of need for support and in a public deed. It will establish the functioning and content of the support system, including personal care. The appointment of a subsequent assistant revokes the previously appointed assistant if a modification is made or if it is incompatible. In the case of voluntary appointment, substitutions may be made. The judge may establish supplementary or complementary measures if there are shortcomings or if the voluntary measures are insufficient.

In both cases, the appropriate control measures will be established to guarantee respect for the rights, will, wishes and preferences of the assisted person and to avoid abuses, conflicts of interest and undue influence, and the assistant will be registered in the Civil Registry. It will be the judicial authority who will determine the functions of the assistant, both in the personal and patrimonial spheres. In exceptional cases and with reasons, the judicial authority will determine the specific acts in which the assistant will or may assume the representation of the assisted person. Likewise, in exceptional and reasoned cases, it may disregard what the person concerned has said if there are serious circumstances of which the assisted is unaware or if, if the person indicated is appointed, there is a situation of conflict of interest, undue influence or risk of abuse.

The acts of the assisted are ineffective if the assistant does not intervene, provided that such intervention is mandatory on the basis of the agreed measures. Therefore, legal acts performed by the assisted person without the intervention of the helper may be annulled at the request of the assisted person, the helper and the heirs within four years of the conclusion of the legal act.

The assistance measures shall be reviewed ex officio every three years and, exceptionally, a longer period may be established, which may not exceed six years. The entitled parties may request modification or review of the assistance if there are changes in circumstances. Likewise, if the assistant becomes aware of circumstances that would make feasible to extinguish or modify the assistance, its scope or its functions, the assistant must inform the judicial authority.

The assistance is extinguished by death, declaration of death or absence of the assisted or by the disappearance of the circumstances that determined it. In the latter case, it will be the judicial authority who, at the request of the party, declares the event that make the conclusion of the assistance and terminates the appointment of the assistant.

The rules of guardianship are supplementary, which means that they will be applied in all that is not regulated and their interpretation will be carried out in accordance with the New York International Convention on the Rights of Persons with Disabilities of 2006.

Finally, articles 227-1 to 227-9 of the Civil Code of Catalonia regulate the patrimonial protection of the disabled or dependent person.  

Sara Díez Rodríguez

Author Sara Díez Rodríguez

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