Mental health support measures: questions and clarifications

They are the way to guarantee, if necessary, the exercise of capacity on an equal basis, in accordance with Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), which proclaims that persons with disabilities have legal capacity on an equal basis with others in all aspects of life, and obliges States Parties to adopt appropriate measures to provide persons with disabilities access to the support they may need in exercising their legal capacity.

Support measures serve to: assist in decision-making, help communicate one's wishes, help shape them, and ultimately, serve the universal goal of ensuring equality in decision-making. Support is, therefore, the result of adopting the necessary measures for this purpose.

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Despite the reform introduced by Law 8/21, our procedural law maintains the adversarial oral procedure for establishing support measures, which must be used in this case so that a judge can decide whether these support measures should indeed be established. Those initiating the procedure must be legally entitled to do so.

It is always advisable that the person considers that in order to exercise their capacity on equal terms, it would be beneficial for them to receive support in one or more spheres of their life, since this is the purpose of the legal provision.

Individuals or legal entities providing support services regularly submit reports to the court detailing their personal and financial circumstances, as stipulated in the agreed-upon support measures. This serves as a way to explain how the support is being provided. This information is included in the judicial proceedings, which are separate from the main support provision process. Therefore, this is the appropriate forum to report any relevant circumstances related to the implementation of the support measures.

Support measures are established for those areas and skills that are necessary, which also includes, if necessary, those related to the economic sphere, which must be sufficiently defined to respond to the objectives sought, and in this case could involve support in the acts of administration or disposal of assets.

Law 8/21 implied a paradigm shift from substitution models to decision support procedures.

• He declared the abolition of incapacitation and of the procedures for the judicial modification of the capacity to act.
• It established, as a novelty, the voluntary jurisdiction procedure for the establishment of support.
• It amended the Spanish Civil Code regarding support persons. In Catalonia, this was done through Decree Law 19/21 of August 31, and therefore, different support persons exist in the two legal frameworks.
• The figures of guardianship, extension and rehabilitation of parental authority were thus eliminated from the field of disability.
• Guardianship is established as the primary court-ordered support measure for people with disabilities in Spain, and assistance is provided in Catalonia (Decree Law 19/21) as a formal and stable support measure. Guardianship can be either assistance-based or representative, and assistance can be supportive, collaborative, or representative. A court-appointed guardian is available as a specific measure, and de facto guardianship is expressly regulated in Spain.
• When it comes to specifying the support measures, the new regulation gives preference to voluntary measures.
• The right to accessibility is also guaranteed, and adaptations and adjustments in procedures involving persons with disabilities were also introduced into procedural laws, regardless of whether they participate as a party or in a different capacity, and these will be carried out in all phases and procedural actions where necessary, including acts of communication. It is also expressly mentioned that the person with a disability will be allowed, if they so wish and at their own expense, to use an expert professional who, as a facilitator, will carry out adaptation and adjustment tasks.
• It requires the review of all sentences issued prior to its entry into force, within a maximum period of three years, recently extended by the final provision 5 of the Defense Law by three more years.
• Obliga ar evisar todos los medidas acuerdos con la nueva legislación en un periodo de tres a seis años y antes, si fuera necesario o hay cualquier cambio que hay cualquier cambio que así asesorte.

Manuals for professionals on decision-making support for people with disabilities

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If support measures are requested without legal representation, standardized forms are available at the courts or prosecutor's offices, although it is not mandatory to use a standardized form; a written request containing the following is sufficient:

• The application, including the applicant's details and also, if requested by a third party, the details of the person for whom support is being requested.
• A description of the circumstances that led to this request
• What measures are being requested and who is proposed to take them on.
• The data must be personal identification information and accurate for contact purposes.

It must be accompanied by supporting documentation for what is being requested, normally and if such information is available:

• Literal birth certificate
• ID card.
• Certificate of registration.
• Disability certificate, if available.
• Medical report.
• Social report.
• And all the documentation that is considered appropriate.

In any case, it must be presented at the Court or Prosecutor's Office of the place where the person who should receive the support resides.

The law allows support measures procedures to be initiated when the person is 17 years old, when it is reasonably foreseen that, after the age of 18, they may require support in the exercise of their legal capacity, although they will not have effects until they reach the age of majority.

Anyone who needs support measures can request them; and so can their closest environment, whether it is their spouse not separated in fact or legally or who is in a similar de facto situation, and their descendants, ascendants or siblings, as well as the Public Ministry.

Furthermore, any person may report to the Public Prosecutor's Office any facts that could determine a situation requiring the judicial adoption of support measures. And public authorities and officials who, by virtue of their positions, become aware of such facts concerning any person must also report them to the Public Prosecutor's Office.

General powers of attorney and notarial assistance are two very different documents, both in their foundation, in the powers granted, and in their control.

Notarial assistance without powers of representation implies a need for support or collaboration requested by a person with a disability to exercise their capacity on equal terms. In contrast, general powers of attorney are granted regardless of whether support measures are required, as their purpose is to authorize another person to act on behalf of the grantor, under the terms specified in the power of attorney; these can also be established with a provision for continued validity in anticipation of loss of capacity.

The figure of the assistant is the only formal and stable figure who can provide support to an adult in Catalonia. Decree 19/21 of August 31, which temporarily adapted the Catalan Civil Code until a more comprehensive reform, declared the replacement of guardianships and curatorships, extended and reinstated parental authority, and other guardianship arrangements with this figure, which exists only in Catalonia.

The assistant's duties are to perform the duties for which he/she has been appointed in accordance with the judicial resolution or notarial deed that provides the content of the measure and always respecting the will, wishes and preferences of the person being supported and promoting the autonomy of the person with a disability or mental health problems.

Cristina Arjona Gargallo

Social worker. Guardianship officer.

Fundació Germà Tomàs Canet. Sant Joan de Déu

"I like to have the security that, if something happens to me, I have someone to support me"

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Support measures are preferably voluntary , so it is important to ensure that the person who needs them can establish them, either through the judicial procedure or, if they reside in Catalonia, through the notarized document of constitution of Assistance.

However, when it is a judge who, through an order, has to decide on the establishment of support measures, he will do so by assessing the evidence presented in the proceedings and will have to consider whether the support measures to be agreed upon, if any, respond to the needs of the person and are proportionate to those needs; whether they respect the autonomy of the person in the exercise of his legal capacity; and whether his will, wishes and preferences are taken into account.

Support measures should always be reviewed when they become mismatched with the needs of the person who requires them; these are documents that must be adjusted.

The establishment of assistance can be carried out through the granting of a notarial public deed or through the voluntary jurisdiction procedure for the provision of judicial support measures for people with disabilities or mental health problems.

Support can be provided by both individuals and public or private non-profit legal entities dedicated to this, who must assign one or more professionals who are responsible for the well-being of the person.

Foundations are non-profit legal entities that implement support measures based on a court order or a notarized deed. They appoint one or more professionals to ensure the well-being of the person requiring support, taking into account their wishes, desires, and preferences, and are subject to judicial oversight through regular accountability reports.

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