FUNDANEED.es
With the approval of Law 8/2021 of 2 June, on the reform of civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity and its publication in the Official State Gazette on 3 June, an important step has been taken in the adaptation of the national legal system to the International Convention on the Rights of Persons with Disabilities (hereinafter the Convention).
This modification affects the Civil Code”, the Notary, Mortgage, Civil Procedure, Property Protection of Persons with Disabilities, Civil Registry, and Voluntary Jurisdiction laws, among others.
The changes it introduces are important. As the explanatory memorandum states, “this is not merely a change of terminology, but a new approach, in which people with disabilities are entitled to make their own decisions, a right that must be respected; it is, therefore, a question of human rights”.
The central idea of the new system is that of support for the person who needs it, which must respect the maximum autonomy of the person concerned, to the extent that the determination of “objective best interests”, which has governed to date, is replaced by the “best possible interpretation of the will”, even in exceptional cases in which the person is unable to express it, and the preference of voluntary measures over judicial ones.
The reform has followed the criteria of the Committee on the Rights of Persons with Disabilities, which interprets the right to decide as an absolute guide in the decisions of the person, which entails “the right to take risks and make one’s own mistakes”, colloquially known as “the right to make mistakes of the mentally ill”.
Faced with this new paradigm, important problems of a particularly interpretative nature arise, among which we can highlight: a) the lack of specification in the reform of the Civil Code of the term “exceptional situations” that allow decisions to be made by representation; b) it will not always be possible to know “the life trajectory of the person with a disability, their beliefs and values”, nor to know “the factors that they would have taken into consideration, in order to make the decision that the person would have taken if they had not required representation”.
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