De facto guardianship or curatorship: the judicial dilemma in the enforcement of Law 8/2021 in light of recent case law

Abstract

The entry into force of Law 8/2021, of 2 June, reforming civil and procedural legislation for the support of people with disabilities in the exercise of their legal capacity, has led to a structural change in the legal regime for the exercise of capacity by people with disabilities.  by replacing the representation model with a support system. However, in judicial practice there is a restrictive and standardized application by the courts of first instance, which tend to opt for the figure of de facto guardianship, even in contexts where the constitution of a conservatorship would be appropriate. This practice, in addition to generating legal uncertainty and a disproportionate burden on families, has had to be corrected on numerous occasions by the Provincial Courts, based on the application of the consolidated doctrine of the Supreme Court.

In this article he offers a systematic analysis of the jurisprudence of the Supreme Court in relation to Law 8/2.021 and examines how this doctrine is conditioning its application by the Courts and Provincial Courts.