Physical or mental illness or deficiency
Posted: Mon Dec 23, 2024 4:12 am
First of all, we must differentiate between legal capacity and capacity to act:
Legal capacity : is the ability that all persons have to be holders of rights and obligations. This capacity cannot be modified; it is inherent to people.
Capacity to act : is the ability to exercise rights and obligations, that is, the capacity of persons to carry out acts with legal effectiveness. The capacity to act is achieved with the age of majority. This capacity can be modified by court order.
When a person is to be incapacitated, we are talking about incapacitating his or her capacity to act. The Civil Procedure Law regulates the process of incapacitation or the modification of the capacity to act . This action pursues a judicial declaration by which the capacity to act of a person who cannot govern himself or herself is restricted.
The process to incapacitate a person
The process of incapacitation or modification of the capacity to act seeks to protect swiss phone number the incapacitated person by suppressing or limiting his or her capacity to act and appointing a guardian or curator as his or her legal representative to look after his or her interests.
«The process of incapacitation seeks to protect the incapacitated person.»
Causes of incapacity
Article 199 of the Civil Code states: " No one may be declared incapable except by a court ruling based on the causes established by law."
Article 200 of the Civil Code states that the causes of incapacity are persistent physical or mental illnesses or deficiencies that prevent a person from governing themselves.
The requirements for there to be a cause for incapacity:
Persistence of the disease or deficiency, that is, it must be a chronic situation or one that lasts over time.
Total or partial impossibility of self-government: the lack of the necessary ability to act for oneself.
Procedure
The Court of the place of residence of the alleged incapacitated person is competent, article 756 of the Civil Procedure Law. It is substantiated by the procedures of the verbal trial with specialties, article 753 LEC .
Since this is a process regarding non-dispositive rights, the appearance by means of a solicitor and the assistance of a lawyer is mandatory, unless the parties are defended by the Public Prosecutor's Office.
Legal capacity : is the ability that all persons have to be holders of rights and obligations. This capacity cannot be modified; it is inherent to people.
Capacity to act : is the ability to exercise rights and obligations, that is, the capacity of persons to carry out acts with legal effectiveness. The capacity to act is achieved with the age of majority. This capacity can be modified by court order.
When a person is to be incapacitated, we are talking about incapacitating his or her capacity to act. The Civil Procedure Law regulates the process of incapacitation or the modification of the capacity to act . This action pursues a judicial declaration by which the capacity to act of a person who cannot govern himself or herself is restricted.
The process to incapacitate a person
The process of incapacitation or modification of the capacity to act seeks to protect swiss phone number the incapacitated person by suppressing or limiting his or her capacity to act and appointing a guardian or curator as his or her legal representative to look after his or her interests.
«The process of incapacitation seeks to protect the incapacitated person.»
Causes of incapacity
Article 199 of the Civil Code states: " No one may be declared incapable except by a court ruling based on the causes established by law."
Article 200 of the Civil Code states that the causes of incapacity are persistent physical or mental illnesses or deficiencies that prevent a person from governing themselves.
The requirements for there to be a cause for incapacity:
Persistence of the disease or deficiency, that is, it must be a chronic situation or one that lasts over time.
Total or partial impossibility of self-government: the lack of the necessary ability to act for oneself.
Procedure
The Court of the place of residence of the alleged incapacitated person is competent, article 756 of the Civil Procedure Law. It is substantiated by the procedures of the verbal trial with specialties, article 753 LEC .
Since this is a process regarding non-dispositive rights, the appearance by means of a solicitor and the assistance of a lawyer is mandatory, unless the parties are defended by the Public Prosecutor's Office.