The new approach to legal capacity

On 17 August 2022 , Law 30/2022, of 21 July, on the qualification of the person and the family, was published in the BOPA.

With this law, Andorran law is adapted to the guiding principles of the United Nations Convention on the Rights of Persons with Disabilities. This has implied, among other things, the abolition of the institution of incapacitation, as well as the measures involving the substitution of the will of people with disabilities.

Currently, there will be no judicial declaration of incapacity but certain supports will be established to guarantee the exercise of the rights of persons with disabilities.

This new approach to legal capacity and its exercise entails the establishment of voluntary or judicial support measures . Priority is given to ensuring that decision-making is always in the hands of the person being assisted and that the person providing support only intervenes in necessary cases. In the event that the person with a disability is unable to formulate their will freely, the support may be representative, respecting, whenever possible, the will of the person being assisted.

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The new institutions for the protection or support of the person are as follows:

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1. Guardianship: protects unemancipated minors who are not under parental authority or who are in a situation of neglect.

2. Curatorship: applies to emancipated minors, or to persons with disabilities, or to persons declared absent.

3. The legal guardian: in cases where there is a conflict of interest between the person in charge of protection or support position and the person being assisted, or, while a protection institution is being set up.

4. De facto guardianship: the de facto guardian assumes the protective functions of the minor or the person with a disability without a formal title that legitimizes him / her. It is usually a relative of the person assisted.

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Natàlia Canut Fernández

jurist