Insufficiency of factual guardianship and emergence of guardianship: compatibility or complementarity

Abstract

Law 8/21, which reforms civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, transforms the institution of de facto guardianship, promoting it to the category of legal support, from its consideration previous provisional figure when it appears to be sufficient and appropriate to comply with the principles of necessity and proportionality, taking into account that the maximum autonomy of the person with disabilities must be respected.

In fact, custody is an informal support measure due to the lack of a formal title that legitimizes it, which acquires special preference when judicial or voluntary measures are not exercised adequately and effectively, that is, it acts in a subsidiary manner.

For the “transition” from de facto custody to conservatorship, as a judicial support measure, whoever exercises de facto custody must demonstrate its insufficiency and the convenience of conservatorship, or, perhaps, if de facto custody is insufficient A guardianship is established to provide better support and in that case both figures can coexist and be complementary.