Les Institucions de protecció de la persona en el codi civil de Catalunya, en especial l'assistència

Abstract

While maintaining the traditional personal protection institutions relating to incapacitation (guardianship and conservatorship), in Book Two of the Catalonia Civil Code it is considered that incapacitation is a resource which is too drastic and at times hardly respectful of the natural capacity of the protected person, and it is stated that, in most cases, neither the person concerned nor his relatives wish to petition for it. For this reason the legal response shows itself adaptable to the progressive loss of the persons cognitive and volitional faculties, allowing the existence of other institutions such as self-guardianship (which had already been established earlier in Catalan law), powers of attorney granted in anticipation of a situation of loss of capacity, assistance, or the progressive revitalizing regulation of de facto guardianship, which is discussed in this study. These institutions give rise to diverse legal instruments aimed to assure compliance with the duty of respecting the persons wishes, will and preferences, and with the principles of proportionality, necessity and subsidiarity provided in the Convention on the Rights of Persons with Disabilities adopted at the U.N. Headquarters in New York on 13 December 2006 and ratified by Spain, as well as with the model of supports which it designed, all on the basis of the full respect for the individuals independence in relation to the early organization of his personal life and property in anticipation of the time when he can no longer decide for himself.