Curatorship is the main support measure in civil law for adults who need assistance to exercise their legal capacity in certain acts. A curator, appointed by the judge, accompanies and assists them while respecting their will, wishes and preferences.
At BBM Abogados we are experts in curatorship, and we also work with our trusted court agents (procuradores), so you can rest assured you will get the best possible outcome.
What curatorship is in Santander
In Santander, curatorship is the stable support measure that the judge establishes for adults who need ongoing assistance in exercising their legal capacity. It does not cancel their will: the curator only intervenes in the specific acts set out in the court ruling.
Through a court procedure, a curator is appointed to support the person in the acts the judge determines, always seeking the least restrictive solution possible and respect for their wishes and preferences.
That is why the court procedure in which curatorship is agreed is a key stage: it is here that the person’s real support needs are assessed and the acts in which they will need the curator’s assistance are precisely delimited.
Curatorship does not seek to replace the person’s will, but to accompany and assist them in order to protect their interests in the acts the judge deems necessary.
Who might need curatorship?
Following Law 8/2021, curatorship is aimed at adults who need ongoing support for certain legal acts —for example, due to an intellectual or psychosocial disability, or an illness that makes decision-making difficult—. There is no longer any talk of “incapable” or “prodigal” persons: the starting point is that everyone retains their legal capacity, and only the supports they need are established.
The measure is reserved for cases where other, lighter forms of support (lasting powers of attorney (poderes preventivos), de facto guardianship or the judicial defender (defensor judicial)) are not sufficient.
Legal capacity and curatorship
People, without any distinction, are holders of rights and obligations. This is what is known in law as legal capacity. However, there are circumstances that can limit our ability to exercise those rights.
Some people, because of their situation, need support to exercise that capacity in certain acts. That is what curatorship is for: a trusted third party, appointed by the judge, who assists the person in exercising their rights without replacing their will.
Curatorship and guardianship: learn to tell them apart
They are easily distinguished when we look at the function of the person who safeguards the wellbeing of the ward or of the person under curatorship.
Curatorship exists to assist the person concerned in certain legal acts determined by the judge. An example would be that, to buy or sell a vehicle, a house or a particular asset, the curator’s approval is required.
Guardianship (tutela), on the other hand, after Law 8/2021, was reserved for minors who are not under parental responsibility: it no longer applies to adults, for whom the relevant support figure is curatorship.
Who can be a curator in Santander under the Civil Code
The judge respects first and foremost the will of the person themselves: if they previously appointed someone they trust (for example, through a lasting power of attorney (poder preventivo) or self-appointed curatorship (autocuratela)), that decision prevails. Failing that, the cohabiting spouse or partner, the parents, the children or other close relatives are usually appointed.
Next in this order come the children, aunts and uncles, grandparents or siblings, but the judge, seeking the greatest wellbeing of the person concerned, may alter the order described.
Likewise, in the absence of any of the persons indicated, the judge may appoint another taking into account their relationship with the person concerned.
What is curatorship under Law 8/2021?
Law 8/2021, on the reform of civil and procedural legislation to support people with disabilities, completely changed this area. Since it came into force, curatorship is no longer a measure that replaces a person’s will, but the main support measure for those who need it.
With this reform, the classic judicial declaration of legal incapacity and the guardianship of adults disappear: no one is declared incapable any more. Instead, the judge sets out supports tailored to each person, with a clear guiding principle: to respect their will, wishes and preferences and to preserve their autonomy as far as possible. Curatorship is no longer understood as a curtailment of rights and becomes a form of accompaniment. You can find out more on our page on legal incapacity.
Representative vs. assistive curatorship
After Law 8/2021, it is worth distinguishing two types of curatorship:
- Assistive curatorship: this is the general rule. The curator does not replace the person, but assists and accompanies them in the specific acts the judge determines (for example, authorising the sale of a property), respecting their day-to-day decisions.
- Representative curatorship: this is exceptional. It is only agreed when it is essential because the person cannot express their will even with support, and only for the specific acts set out in the court ruling.
When the support needed is one-off, there are even lighter figures, such as the judicial defender (defensor judicial) or informal supports. If you are unsure between curatorship and another measure, or between curatorship and guardianship —the latter now reserved for minors—, at BBM Abogados, a law firm in Santander since 1990, we assess your case and advise you. Tell us about your situation with no obligation.
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