Older people with disabilities and support measures: the role of de facto custody in Spanish legislation and case analyses

Abstract

The aim of this article is to study the support measures provided for in the Spanish Civil Code (SCC) for older people with disabilities, with an emphasis on the application of de facto guardianship in relation to other measures. Initially, the aim is to present an overview of voluntary and judicial support measures in Spanish law, and then to reflect on the application of de facto guardianship to older people with disabilities at a doctrinal and case law level. The analysis shows that the premise considered by the courts (lack of discernment or existence and effectiveness of care), at second instance, reflects the support measure awarded: guardianship or de facto guardianship. Based on the changes introduced by Law No. 8/2021 to the SCC, inspired by the principles of the International Convention on the Rights of Persons with Disabilities (CRPD), it is understood that the most coherent interpretation is the application of de facto guardianship, regardless of whether the discernment of the disabled older person is assessed. This is pure, qualitative and exploratory study, carried out using the legislative, bibliographical and jurisprudential review method.