Guardianship, Curatorship, and Support Measures Under Law 8/2021: New Guide for Lawyers

The Paradigm Shift: From Incapacitation to Support Measures

Law 8/2021, of 2 June, reforming civil and procedural legislation to support persons with disabilities in exercising their legal capacity, has brought about the most profound transformation of Spanish Civil Law regarding capacity since the promulgation of the Civil Code of 1889. This law, in force since 3 September 2021, implements in Spain the principles of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by Spain in 2008.

The fundamental change is conceptual: the model of substitution of will (incapacitation) is abandoned and replaced by a model of support for the exercise of legal capacity. Persons with disabilities are no longer "judicially incapacitated"; they retain their legal capacity and receive the support they need to exercise it.

Main Legislative Changes

1. Elimination of judicial incapacitation: The incapacitation procedure and the declaration of incapacity no longer exist. They are replaced by a procedure for provisión of support.
2. Abolition of guardianship for adults: Guardianship (tutela) is now reserved exclusively for non-emancipated minors. Adults receive curatorship or other support measures.
3. Curatorship as the main judicial measure: Curatorship becomes the principal judicial support measure for adults, with two modalities: assistive and representative.
4. Priority of voluntary measures: Support measures established by the person themselves (preventive powers, self-curatorship) take priority over judicial ones.
5. Mandatory periodic review: All judicial measures must be reviewed periodically (maximum three years, exceptionally six).

Support Measures: Catalogue and Hierarchy

Voluntary Measures (Preferred)

Law 8/2021 gives absolute priority to measures that the person themselves has previously established:

Preventive Powers and Mandates (Arts. 256-262 CC):

• The interested party grants a notarial power of attorney that takes effect when they need support in exercising their capacity.
• It may include provisions on personal care, asset management, medical decisions, etc.
• It is the most respectful form of personal autonomy: the person decides in full capacity who will assist them and how in the future.

Self-Curatorship (Arts. 271-274 CC):

• The person may designate, by public deed, who they wish to be their curator if the need arises.
• They may also exclude certain persons from the curatorship.
• They may establish provisions on the functioning and content of the curatorship.
• The judge must respect these provisions unless serious circumstances advise otherwise.

De Facto Guardianship (Arts. 263-267 CC)

De facto guardianship is regulated as an informal support measure that does not require a judicial decisión. It recognises situations where a person (relative, close associate) is already naturally performing support functions:

• No prior judicial authorisation is required for ordinary acts.
• For acts of disposal of property or rights requiring judicial authorisation, the guardian must obtain authorisation from the judge.
• The judicial authority may require the guardian to report on the situation of the person with a disability.

Curatorship (Arts. 268-294 CC)

Curatorship is the main judicial support measure and is configured in two modalities:

Assistive curatorship (general rule):

• The curator assists the person, complementing their capacity to act.
• The person with a disability acts on their own behalf, with the curator's support.
• The curator does not substitute the person's will but supports and complements it.

Representative curatorship (exceptional, Art. 269 CC):

• Applicable only when the person cannot express their will in any way.
• The curator acts on behalf of the person but always considering their will, wishes, and preferences.
• It must be proportionate and limited to strictly necessary acts.

Judicial Defender (Arts. 295-298 CC)

A judicial defender is appointed for specific situations:

• Conflict of interest between the person and their curator.
• While the provisión of curatorship is being processed.
• For specific acts requiring special representation.

Judicial Procedure for Provisión of Support

Standing to Request Support Measures

The following persons are entitled to initiate the procedure (Art. 757 LEC, as amended):

1. The person themselves who needs support.
2. Their spouse or de facto partner.
3. Descendants, ascendants, or siblings.
4. The Public Prosecutor: Has active standing and must also intervene in all proceedings as defender of the rights of the person with a disability.

Processing of the Procedure

The procedure is processed through the channels of voluntary jurisdiction (Law 15/2015) when there is no opposition, or through the special procedure under Articles 756 et seq. of the LEC:

1. Application or claim: With a proposal of the support measures considered necessary.
2. Hearing of the person with a disability: This is mandatory. The judge must directly examine the person to understand their situation, preferences, and wishes. The person has the right to be heard under appropriate conditions.
3. Expert reports: A report from the court's psychosocial team is obtained. Additional medical, psychological, and social reports may be provided.
4. Hearing of family members and close persons: The judge hears the spouse, family members, and persons in the close circle who can provide relevant information.
5. Intervention of the Public Prosecutor: The prosecutor issues a report on the measures they consider appropriate, always in defence of the person's rights.
6. Judicial decisión: The judgment or order establishes the specific measures, their scope, duration, and the review regime.

Content of the Judicial Decisión

The decisión must specify (Arts. 268-269 CC):

• The specific support measures adopted
• The acts for which the person needs assistance or representation
• The person or persons designated as curator
• The conditions and guarantees of the curatorship
• The review period (maximum three years, exceptionally six)
• Safeguard measures to prevent abuse

The Role of the Public Prosecutor

Functions Under the New System

The Public Prosecutor has a reinforced role following Law 8/2021:

1. Ex officio promoter: If aware that a person needs support measures and nobody has requested them, the prosecutor must initiate the procedure (Art. 757.5 LEC).
2. Rights defender: In all proceedings, the prosecutor safeguards the fundamental rights of the person with a disability.
3. Supervisor: May request information on the situation of persons with support measures and promote their review when necessary.
4. Necessary participant: Must intervene in all proceedings relating to support measures, even when not the promoter.

Specialised Prosecution Offices for Persons with Disabilities

The reform has promoted specialisation within prosecution offices. In major cities, there are specialised sections or prosecutors for the protection of persons with disabilities, facilitating more effective monitoring of the measures adopted.

Review and Adaptation of Existing Measures

Third Transitional Provisión of Law 8/2021

Incapacitation judgments and guardianships established before the law came into force (3 September 2021) continue to produce effects, but must be reviewed to adapt to the new system. The law established a three-year period (until 3 September 2024) for ex officio review, although in practice many reviews remain pending.

Review Procedure

A review may be requested by:

• The person subject to the measures themselves
• The designated curator or guardian
• The Public Prosecutor
• Any person entitled to request support measures

The judge will review the measures and adapt them to the new system: guardianship will be converted to curatorship, the scope of representation will be adjusted, and a periodic review period will be set.

Lexiel as a Tool for Family Law Practitioners

The Law 8/2021 reform has generated a new body of legislation and case law that is constantly evolving. Lexiel can assist the specialist lawyer with:

• Consulting current legislation: Verifying the current wording of reformed Civil Code articles (Arts. 249-298, among others), as well as the transitional provisions of Law 8/2021.
• Searching recent case law: Finding rulings from Provincial Courts and the Supreme Court on the application of the new support system, criteria for representative curatorship, and review of pre-existing measures.
• Drafting submissions: Generating drafts of applications for provisión of support, reports on the need for curatorship, and deeds of self-curatorship or preventive powers.
• Comparison with the previous system: Analysing how measures from the old regime (guardianship, extended parental authority, classical curatorship) transfer to the new system.

Automatic verification of legal citations is especially relevant in this field, given that many Civil Code articles have changed in numbering and content following the reform.

Frequently Asked Questions About Guardianship, Curatorship, and Support Measures

¿Can judicial incapacitation still be requested?

No. The incapacitation procedure has been abolished by Law 8/2021. What is now requested is the provisión of support measures. Incapacitation claims filed before the law came into force are processed under the new system.

What is the difference between assistive and representative curatorship?

Assistive curatorship (general rule) means that the person with a disability acts on their own behalf with the curator's support. Representative curatorship (exceptional) means that the curator acts on behalf of the person when they cannot express their will in any way. Representative curatorship must be limited to strictly necessary acts.

Who can be a curator?

Any adult natural person who is not disqualified from holding guardianship positions, as well as non-profit legal entities (guardianship foundations). The law establishes an order of preference: the person designated by the interested party themselves, the spouse or partner, children, parents, and siblings (Art. 276 CC).

How often are support measures reviewed?

The judicial decisión must establish a review period that cannot exceed three years. Exceptionally, if circumstances justify it, a period of up to six years may be set. Additionally, any significant change in the person's situation may justify an early review.

What is self-curatorship and how is it established?

Self-curatorship is the preventive designation made by a person, by notarial public deed, of the curator they wish to have if they need support measures in the future. It may include instructions on the functioning of the curatorship, exclusión of certain persons, and preferences regarding personal and asset care. It is registered with the Civil Registry.