Study on "Challenges and good practices in the implementation of ...

According to Article 200 of the Spanish Civil Code, the criteria to declare a personincapacitated are consist of two complementary elements: (a) the existence of a“physical or psychic illness or deficiencies with a permanent character”; and (b) theimpossibility for the person to exercise self-determination 256 due to that illness orimpairment. The incapacitation is generally followed with the appointment of aguardian who substitutes the person‟s decision making. In certain cases though thecourt, based on Article 267 of the Spanish Civil Code, may indicate actions that theincapacitated person is authorised to carry out on his/her own.Limited guardianship is also provided for in Spain with the appointment of a curator toassist the incapacitated person in a series of acts expressly indicated in the judicialincapacitation order. In this case decision making is usually on a co-decision basis. 257Curatorship is not intended to substitute, but rather complement the will of the personsubject to the curatorship, who should be involved in the decision making. Whilecuratorship is under Spanish Law a less restrictive measure in the decision makingprocess, it should be pointed out that it is exceptionally used by the court in situationsof capacity assessment of persons with intellectual or psycho-social disabilities.In conclusion, guardianship systems can deprive persons with disabilities of their rightto make decisions about their own life, and in exercising their legal capacity on anequal basis with others. Problems arising out from guardianship systems illustrateimportant challenges to the effective implementation of Article 12 UN CRPD. Systemslike curatorship in Spain, which is based on co-decision, seem to have positiveelements and allow for the establishment of a supportive decision making system forpersons with disabilities. However, the pre-condition of incapacitation makes thecuratorship system inconsistent with the UN CRPD requirement to recognise personswith disabilities as holders of rights.A positive effort of legislative reform to recognise legal capacity of persons withdisabilities has been taken in Hungary, which is in process of codification of its CivilCode. Reforms on the Civil Code aim to abolish plenary guardianship and introducemeasures for supportive decision making for persons with disabilities. 258256 The literal translation of the wording used in Article 200 (impidan a la persona gobernarse por símisma) would be „that prevents the person to governing him/herself‟257 See Articles 287-289 of the Spanish Civil Code, available (in Spanish) athttp://civil.udg.es/normacivil/estatal/CC/INDEXCC.htm258 An unofficial English translation of the articles of the Hungarian Civil Code relating to legal capacityand guardianship can be downloaded from the website of the Mental Disability Advocacy Centre,available at: http://www.mdac.info/en/webfm_send/18Page | 96