From incapacitation to support measures: what changed with Spain’s Law 8/2021
Many families still ask us how to have a parent with Alzheimer’s or a child with an intellectual disability declared legally incapacitated. Since September 2021 that option no longer exists in Spain: Law 8/2021 overhauled the system and replaced it with support measures. Here is what that means and what options you have today.
The change of approach
Previously, the judge declared the person "incapable" and appointed a guardian who decided for them. Now, following the UN Convention on the Rights of Persons with Disabilities, the starting point is that everyone has legal capacity. What some people need is support to exercise it, tailored to their circumstances and respecting their will, wishes and preferences as far as possible.
Types of support measures
In order of preference, the law provides for:
- Voluntary measures: those the person decides for themselves in advance, such as preventive powers of attorney before a notary or self-appointed curatorship (naming who you want to support you if you ever need it). They are the best planning tool.
- De facto guardianship: a relative who is already providing adequate support can continue without going to court. For certain major acts they will need court authorisation.
- Curatorship (curatela): appointed by the judge when ongoing support is needed. As a rule it is assistive (the curator accompanies and assists); only exceptionally is it representative (the curator acts on the person’s behalf), and only for the acts set out in the judgment.
- Court-appointed defender: for one-off situations or where there is a conflict of interest.
Guardianship (tutela) is now reserved for minors not under parental authority.
How to apply for curatorship
It is first processed as non-contentious proceedings at the court of the person’s place of residence, for example in Albacete or Villarrobledo. If anyone objects, it becomes contested. The judge interviews the person, hears the relatives and may request medical and social reports. The judgment specifies which acts require support and how.
Periodic review
Court-ordered measures are reviewed at least every three years (six in exceptional cases). Incapacitation rulings issued before 2021 also had to be reviewed and adapted: if your family has an old guardianship or curatorship that has not been reviewed, you can ask for it to be brought into line with the new system.
Plan ahead
If you are concerned about your own future or your parents’, the time to act is while full decision-making ability is retained: a well-drafted preventive power of attorney avoids court proceedings, protects assets and ensures the person’s wishes are respected. This is especially relevant for foreign residents with assets in Spain.
How we help
We advise you on the most suitable measure, draft preventive powers of attorney and self-appointed curatorships, apply for curatorship or the court authorisation a de facto guardian needs, and review old rulings. We serve Albacete, Villarrobledo, La Roda, Hellín, Almansa and the rest of the province, and can assist you in English.
Frequently asked questions
Does court-ordered incapacitation still exist in Spain?
No. Since Law 8/2021 it has been replaced by support measures, such as curatorship, tailored to what each person needs.
Do I need to go to court to help my father with Alzheimer’s?
Not always. If you already support him in practice, you can act as de facto guardian, although certain acts, such as selling a property, require court authorisation.
What is a preventive power of attorney?
A power of attorney you grant yourself before a notary so that a trusted person can act for you if you need support in the future.
This article is for information only and does not replace professional advice on your specific case. It refers to Spanish law.
