New support measures for people with disabilities: a challenge for everyone

18/09/2023

Spanish legislation establishes that people with disabilities have the same legal capacity as anyone else, in all aspects of their life. Law 8/2021Abre en ventana nueva has been in force for three years now, adapting our legislation to the International Convention on the Rights of Persons with Disabilities, approved in New York in 2006, which the European Union joined in 2009.

This reform represents a real change of mentality, since it involves and requires the support of everyone and it also entails a change in relations between financial institutions and their customers, who must adapt their practices to the new law and guarantee the financial inclusion of people with disabilities.

To achieve these objectives, several new developments are introduced for the daily lives of people with disabilities. The most important ones have to do with decision-making: before, it was the guardian of the adult disabled person, or the father or mother who extended their parental authority, who made the decisions instead of the person with disabilities, if they had been declared incapacitated. It is no longer possible to declare people incapacitated, and guardians and extended parental authority are to cease to exist. The new model is based on respect for the will and preferences of people with disabilities and recognises their right to be helped to make their own decisions.

The law gives preference to voluntary support measures, that is, those requested by the disabled person themself, as opposed to judicial support, which should be exceptional. Among voluntary support measures, preventive powers and orders are especially important, in case the person needs support to exercise their capacity in the future, and self-curatorship or appointment of a curator for oneself.

As part of the judicial support measures, the law includes the role of the curator (who can be purely to provide assistance, or represent the person with disabilities in the acts decided by the judge) and that of the judicial defender, who provides occasional support in the absence of a curator. 

But the most important support in the law is the de facto guardian, which is neither a judicial nor a voluntary measure, but a means of informal support, mainly through the family environment of the person with disabilities, who does not need an appointment to carry out the day-to-day guardianship operations. This figure is expected to be widely adopted in the future because of its informal nature.

Next week we will address the measures that are being adopted to clarify these relationships between financial institutions and their customers.