CIVIL CODE REFORM
In Som – Fundació, we celebrate the approval of the preliminary project of Law for the reform of Civil Code referred to people with disability carried out by the Council of Ministers on 7 July. Thanks to this preliminary project, disability as a civil estate lags behind, and introduces changes in the regulation of institutions for the guardianship and protection of people with disability.
The reform that will initiate its parliamentary proedure, tries to adapt the Spanish legislation to the demands of the UN convention on the Rights of the Persons with disability, signed by Spain in 2008.
This initiative complies with the mandate of Article 12 of the International Convention on the Rights of Persons with disability, which obliges all the States to guarantee the equal juridical capacity of persons with disability in all the legal relations. This must be accomplished without restrictions or exclusion, providing support to the decision making when necessary, but without replacing the person. The norm insists on the fact that the public authorities must guarantee an adequate systems of supports and safeguards to people with disabilities, taking into account their will, wishes and preferences.
The reform eliminates the situation of incapacity or “judicially modified capacity” regulated in the Civil Code for the support, a term that encompasses from the technical assistance in the communication of declarations of will to representation or substitution in the decision-making, only when the support will not be able to be given in another way. Therefore, the new reform guarantees a model of provision of supports aligned with the Convention.
Likewise, the figures of guardianship of the adult persons, the extended parental authority and the refurbished parental authority disappear, figures that do not answer to the system of promotion of the autonomy of adults with disability, proposed in the preliminary project.
Finally, the new preliminary project establishes that those who, due to a contractual relationship, provide care or residential services to the person who needs the support will not be allowed to provide any type of support for the the decision-making that it expecteed.