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2016: Decision making and legal capacity in dementia



There are currently two laws in Spain governing healthcare and decision making:

  1. the Basic Law 41/2002 on the Autonomy of the Patient and the Rights and Obligations with regard to Information and Clinical Documentation (the “Patients’ Rights Law”), which entered into force on 16 May 2003,
  2. the Convention on Human Rights and Biomedicine, Oviedo, April 1997 (ratified by Spain on 23 July 1999). The Patients’ Rights Law incorporates all the principles of the Convention on Human Rights and Biomedicine.

The Law 41/2002 is the basic legislation as established in article 149.1.1 and article 16 of the Constitution. The State and the autonomous regions are responsible for taking the necessary measures to ensure the effectiveness of this law.

This Law contains additional conditions and further provisions governing medical research projects. It is stated: “The norms of this law relative to welfare information, infor­mation on freedom of choice of doctor and centre, the informed consent of the patient and medical records, will also be applicable in the case of medical research, the proc­esses of extracting and transplanting organs, human-assisted reproduction and in other areas which lack special regulation”.

The Law 41/2002 has also repealed important articles of the former General Health Law, as stipulated in the Unique Repealing Disposition: “Dispositions of equal or low status that are opposed to the provisions contained in the present law are repealed, namely, paragraphs 5, 6, 8, 9 and 11 of article 10, paragraph 4 of article 11, and article 61 of the General Health Law 14/1986”.

Consent to medical treatment

In the context of the Patients’ Rights Law (41/2002) two possibilities are envisaged:

  1. When incapacity has not been declared (i.e. when there has been no declaration of judicial incapacity),
  2. When incapacity has been declared (i.e. there has been a court ruling and guardian­ship measures established).

When the patient is unable to make decisions in the opinion of the treating doctor, or his/her physical or mental state does not allow him/her to manage his/her situation, but he/she does not have a legal representative, consent must be given by a relative or someone tied to him/her for de facto reasons.

According to article 9, paragraph 3, for patients who have been declared legally incapacitated, consent must be granted by a legal representative.

It is stated in article 8 that consent should be given orally but there are certain exceptions for which written consent is necessary. These include surgical interventions, inva­sive diagnostic and therapeutic procedures, and in general, procedures involving risk or having a known or predictable negative impact on the patient’s health.

According to article 9, paragraph 2, physicians may carry out clinical interventions which are essential for the patient’s health without the patient’s consent if there is a risk to public health which has been established by law. Once measures have been initiated in accordance with Law 3/1986, the judicial authorities must be informed within 24 hours in order to arrange for compulsory internment.

The right to refuse consent

Refusal of consent is addressed in article 2, paragraphs 3 and 4 of the Patients’ Rights Law (41/2002). Patients have the right to decide freely, after having received the appropri­ate information, between the clinical options available (art. 2, par. 3). Such refusal must, however, be made in writing (art. 2, par. 4).

The right to withdraw consent

Under the Patients’ Rights Law (41/2002), patients are free to withdraw consent or refuse treatment at any time but this must be recorded in writing (article 8, paragraph 5).

Consent to clinical trials

Article 9, paragraph 4 of the Patients’ Rights Law (41/2002) covers consent to participation in clinical trials (amongst other things).

Advance Directives

The legal status of advance directives in Spain

Advance directives have been legal in Spain since 14 November 2002. The Patients’ Rights Law (41/2002), which is applicable throughout the whole of Spain, permits people to state their wishes with regard to medical treatment whilst they still have the capacity to do so. Article 11 also covers the possibility to express wishes concerning the disposal of the person’s body and organs after death, and the appointment of a representative with responsibility to ensure that healthcare professionals comply with the person’s previously expressed wishes.

Conditions surrounding the writing, validity and registering of an advance directive

In order to write a valid advance directive, a person must be at least 18 years of age, free from pressure and have the necessary capacity to do so. In Spain, everyone is presumed to have capacity unless proven otherwise by means of a legal procedure and declared by a court.

The document can be formalized by a notary but there is no mention of this in the law. Consequently, it seems that this is not necessary. If the document is nevertheless signed in the presence of a notary, the notary must confirm that the person has the necessary capacity to sign such a document.

In most of the autonomous community’s advance directives are made either in the presence of a notary or privately with witnesses. These witnesses should be named in the document and should also sign the document. It is presumed that by signing the document they are also confirming that the person writing the advance directive has the capacity to do so. Two out of the three witnesses should not be family members or have any economic/business relationship with the person making the advance directive. In some autonomous communities, where very few advance directives are made, it is pos­sible to just sign the document in front of a healthcare professional or the person who is in charge of the advance directives registry.

Several autonomous regions have advance directive registries, so people writing advance directives should ensure that they follow the formal procedure of the region in which they reside. Legislation is pending to create a national register for advance direc­tives. This was foreseen in the Patients’ Rights Law (41/2002) in which it was stated, “For the purpose of ensuring the effectiveness throughout the national territory of advance directives, expressed by patients and formalized in accordance with the respective laws of the autonomous regions, the Ministry of Health and Consumer Protection will create a national registry of advance directives which will be governed by the regulations previ­ously determined by the Inter-territorial Council of the national health system.”

The Law stipulates that every health service should set up a suitable procedure to ensure compliance with a person’s previously expressed wishes (which should always be in writ­ing). In order to be considered valid:

  • advance directives should not contain instructions which are against the law;
  • advance directives should not contain instructions which are contrary to “lex artis” or good medical practice;
  • the actual circumstances or situation must correspond to that/those previously envisaged.
  • Advance directives are not limited to a set period of time.

What an advance directive can cover

The Basic Law 41/2002 does not specify what an advance directive can or cannot cover. It can therefore be presumed that it could cover:

  • the treatment of medical conditions;
  • The treatment of a psychiatric condition;
  • Care and welfare decisions;
  • Research;
  • Basic care;
  • Life-supporting treatment; and
  • Life-saving treatment.

As stated earlier, an advance directive may be used to appoint a representative who will be consulted by the doctor and healthcare professionals, when appropriate, in order to ensure that the person’s previously expressed wishes are respected.

Obligation to comply with instructions contained in an advance directive

With regard to the refusal of life-supporting and life-saving treatment, some lawyers point out that doctors are faced with the conflicting duty of complying with the patient’s request and fulfilling their own obligation to preserve life and maintain health. How­ever, the law states that doctors can only ignore instructions contained in an advance directive if the instructions are against the law, contrary to good medical practice or do not correspond to the situation previously envisaged. If a doctor fails to comply with instructions contained in an advance directive and cannot comply with the previously expressed wishes, he/she must state why the patient’s instructions were ignored.

Amending, renewing and cancelling advance directives

Advance directives can be amended, renewed or cancelled at any time provided that the person has the necessary capacity to do so. This must be done in writing. Some people involve a notary when modifying or cancelling an advance directive. However, a per­son with incapacity cannot revoke an advance directive. In such cases, to the best of our understanding, the legal representative (i.e. the tutor) can try to revoke the advance directive with the prior approval of the public prosecutor and the approval of the rel­evant guardianship court. If a person made several advance directives, the most recent one would be the one considered valid.

Legal Capacity

Issues surrounding the loss of legal capacity

Provisions relating to legal capacity can be found in articles 199 to 214 of the civil code.  According to these provisions, nobody may be declared incapacitated except by court judgement by virtue of legally established causes. Causes for incapacitation include those illnesses or permanent deficiencies of a physical or psychiatric nature, which prevent the person from managing his/her own affairs. According to Marquez and Mateos (2008), anyone can commence an incompetence proceeding by informing the Department of Public Prosecutions. Alternatively, the person with presumed incompetency, first or second degree relatives, the authorities or public officers must inform the Department of Public Prosecutions if they are aware of any grounds for incompetence.

The Department of Public Prosecutions must request the declaration if the persons mentioned in the previous article do not exist or if they have not requested it. For this reason, should the authorities and civil servants in the exercise of their duties become aware of the existence of a possible cause for incapacitation, they must inform the Department of Public Prosecutions of this. In addition to those whose responsibility it is to report a possible case of incapacitation, any person can inform the Department of Public Prosecutions of facts which he/she believes could be a cause for incapacitation.

The Department of Public Prosecutions, which must always be involved in the court case, must request the appropriate information from the Judge within fifteen days of being informed. If the Department of Public Prosecutions had not requested the procedure, the Judge must appoint a defence counsel for the person presumed to be incapacitated, unless one has already been appointed. In all other cases, the Department of Public Prosecutions acts as the defence counsel. The person presumed to be incapacitated may appear in court with his/her own defence counsel and legal representatives.

During the court case, the Judge hears the closest relatives of the person presumed to be incapacitated, consults the latter and hears the verdict of a qualified doctor. The Judge may also ask for as many tests to be carried out as he/she sees fit. At any point in the proceedings the Judge may take any measures which he/she considers appropriate to safeguard the person or estate of the person who is presumed incapacitated.

When the sentence is declared, the Judge decides on the extent and limits of incapaci­tation as well as on the system of guardianship or control to which the incapacitated person must be subjected. The sentence can be overridden or modified if necessary at the request of those exercising the post of guardian, the Department of Public Prosecu­tions or the incapacitated person him/herself. Court decisions on incapacitation shall be recorded or inscribed in the Civil Register.

Other legislation which relevant to the issue of incompetence includes the Ley de Enjuiciamiento Civil (Spanish Rules of Civil Law Procedure) and the Código Penal (Spanish Penal Code).

Proxy decision making


With reference to Ley 41/2003 sobre Protección de las personas con discapacidad (Law on Protection of People with Disabilities), two key point include

  • The creation of a protected state that will be used exclusively for the care, protection and wellbeing of the person with disabilities whether it is managed by the person him/herself or a tutor, curator or non-profit specialised institution.
  • The possibility to take precautionary measures against one’s own future incompetence (especially in the case of neurodegenerative brain diseases).

Relatives (spouses, ascendants and descendants) are obliged to provide maintenance for each other according to the Civil Code (articles 142 to 153). This covers everything which is essential for sustenance, accommodation, clothing and medical care.

The guardianship, curatorship or custody of incapacitated people is covered by articles 215 to 306 of the Civil Code. The custody and protection of an incapacitated person can be ensured by means of:

  • Guardianship (art. 222-285).
  • Curatorship (art. 286-294).
  • Court-appointed defence counsel (art. 295-302).
  • De facto guardianship (art. 303-306).
Conditions for the appointment of a guardian

If it comes to the attention of the Department of Public Prosecutions or a competent Judge that there is a person within their territory who should be subject to guardianship, it is their responsibility to arrange for guardianship. Anyone can inform them of a fact which they feel could justify guardianship.

Once relatives have become aware of any fact which would necessitate the setting up of guardianship, they should instigate the setting up of guardianship. Failure to do so would result in their being responsible for compensation for any damages or losses caused.

Causes for incapacitation include those illnesses or permanent deficiencies of a physical or psychiatric nature, which prevent the person from looking after himself/herself. Con­sequently, these are the same conditions for the appointment of a guardian.

How guardianship is arranged

The Judge sets up guardianship after a hearing with the closest relatives of the person concerned or with people whom he/she may deem appropriate. If the person for whom the guardianship measure is intended is over 12 years of age, he/she must also be heard. When the decision is made by the Judge or at another point in time, he/she can stipulate the measures for supervision and control which are deemed appropriate for the person under guardianship. The Judge may also at any time ask the guardian to provide a report on the incapacitated person’s situation and the state of the guardianship.

Who can be a guardian

Guardians are appointed according to the following order of preference:

  • The spouse who cohabits with the person under guardianship.
  • The parents.
  • The person(s) designated by the person under guardianship in his/her last will and testament.
  • The descendants, ascendants or brother/sister appointed by the Judge.

The Judge can alter the order of preference or exempt all those included in it, if he/she feels that this would be in the best interests of the person under guardianship. In the absence of those mentioned in the above list, the Judge can appoint a person whom he/ she considers to be the most ideal person due to his/her relationship with the person under guardianship. The court decision on the choice of guardian (as well as for curator) must be recorded in the Civil Register.

Guardianship is exercised by one person unless the Judge decides otherwise. This could be due to the fact that it would be more appropriate to divide the guardianship of per­sonal matters from that of assets.

Non-profit making organisations whose aims include the protection of minors and/or incapable adults may also be guardians. Any person who is in full possession of his/her civil rights and has not been disqualified could be a potential guardian. Articles 243 to 247 give details of people who cannot be guardian. These include people who:

  • have been removed from a previous guardianship;
  • have been convicted and punished by a prison sentence, whilst incarcerated;
  • have been sentenced for any crime that might lead to the assumption that they would not fulfil the role of guardianship properly;
  • are incapable of the task;
  • harbour manifest enmity towards the incapacitated person;
  • have bad conduct;
  • do not have known means of support;
  • have substantial conflicts of interests with the incapacitated person;
  • are involved in legal proceedings against the latter or proceedings regarding the civil status of the incapacitated person;
  • owe considerable sums to the incapacitated person;
  • are involved in bankruptcy proceedings unless guardianship only relates to the person.
The duties and responsibilities of the guardian

The guardian is the representative for the incapacitated person except for those acts which he/she may perform alone, whether by express provision of the Law or by the sentence of incapacitation.

Those subject to guardianship owe respect and obedience to the guardian. A guardian may, in the performance of his/her duty, seek the aid of the authorities.

The guardian is obliged to provide care and food, encourage the achievement or recov­ery of capacity and integration into society (if possible), to inform the Judge annually about the situation of the incapacitated person and provide the Judge with annual accounts for his/her administration.

If in the exercise of his/her duties, the guardian (or the curator) incurs damages or losses through no fault of his/her own, he/she may be entitled to compensation which can be deducted from the assets of the person under his/her custody.

How the financial affairs of the incapacitated person are handled?

The Judge may demand that the guardian set up a guarantee deposit in order to ensure that the guardian respects his/her obligations. The type and amount of the guarantee deposit is determined by the Judge. This deposit can be annulled or modified at any time by the Judge provided that there is a valid reason.

The guardian is obliged to make an inventory of the assets of the ward of court within a time limit of sixty days to be counted as from the date on which he/she takes up the post. The court authorities may extend this time limit if there are reasons to do so. The inven­tory is registered by the court in the presence of the State Prosecutor.

Any money, jewellery, precious objects and stocks or documents that, in the opinion of the court authorities, should not remain in the possession of the guardian must be deposited at an establishment intended for that purpose. If this results in expenses, they can be charged to the estate of the person under guardianship. If the guardian does not include in the inventory loans held against the person under guardianship, it shall be understood that he/she has expressly waived them.

The guardian must have court authority:

  • To dispose of or encumber real estate, trading or industrial establishments, precious objects and movables belonging to the minors or incapacitated persons, or to exe­cute contracts or perform acts that have the nature of an instrument or are liable to be registered. The sale of preferential share purchase rights is exempted.
  • To waive rights, as well as settle or submit to arbitration questions in which the per­son under guardianship is an interested party.
  • To accept any legacy without profit for the inventory, or to reject the latter or the gifts.
  • To make extraordinary expenditure on the assets.
  • To sue on behalf of those subject to guardianship, except in urgent matters or those for very small amounts.
  • To assign assets on lease for a period of over six years.
  • To grant and take money on loan.
  • To freely dispose of assets or rights belonging to the person under guardianship.
  • To assign to third parties the loans that the person under guardianship holds against him/her, or to purchase for cash the loans from third parties against person under guardianship.

The sharing out of a legacy or the division of a common asset performed by the guardian shall not require court authority, but once done court approval is required.

Before authorising or approving any of the acts mentioned above, the Judge holds a hearing with the Department of Public Prosecutions and with the person under guardi­anship. The Judge may also obtain appropriate reports if he/she deems it appropriate.

The guardian is entitled to payment, providing that the Judge considers that the estate of the person under guardianship allows it. It is the duty of the Judge to set the amount and to decide how it will be paid. In order to do this, he/she must bear in mind the work to be performed and the value and profitability of the assets, attempting as far as pos­sible to ensure that the amount of the payment is not less than 4 percent and not more than 20 per cent of the cash yield from the assets.

In the event of the death of the person under guardianship, the guardian must submit general accounts with documentary evidence for his/her administration before the court authorities within a time limit of three months, which may be extended, where neces­sary, if there is a just cause. Before approving the accounts, the Judge holds a hearing with the trustee or the legally appointed guardian and the heirs of the person who has been subject to the guardianship.

Measures designed to protect the ward from misuse of power

If guardians have been granted joint powers and a situation arises whereby there is some kind of incompatibility or conflict of interests with either guardian in respect of an act or contract, the other guardian can carry it out. Alternatively, if there are several guardians they can carry out the act jointly. If one guardian ceases to act as a guardian, the remain­ing guardians should continue to act on behalf of the person under guardianship unless otherwise stipulated when the appointment was made.

People can be removed from the office of guardian by the Judge if there is any legal cause for disqualification or if they have behaved badly in the performance of their duties, through non-compliance with the duties or manifest ineptitude. Removal can be requested by anyone and can be decreed by the Judge following a prior hearing with the guardian. During the proceedings, the Judge may suspend the guardian from his/her duties and appoint a court defender for the incapacitated person.

Curatorship, court-appointed defender and de facto guardianship

A curator may be appointed for a person if this was decided as part of the sentence of incapacitation. The curator must assist the person in tasks which were stipulated in the court decision establishing curatorship. For tasks which were not mentioned at the time the court decision concerning incapacitation was made, it is understood that the curator needs authorisation for those tasks for which the guardian needs authorisation. The regulations regarding the appointment, disqualification discharge and removal of guardians are also applicable to curators and court-appointed defenders. A person has been made bankrupt or is involved in bankruptcy proceedings cannot be appointed as a trustee. If the person subject to curatorship previously had a guardian, the post of curator will be held by the same person unless the Judge decides otherwise.

A court-appointed defender may be appointed:

  • to represent and protect the interests of an incapacitated person in situations where
  • there is a conflict of interests between the latter and his/her legal representative or curator;
  • to intervene if there is a reason which prevents the guardians or curator from perform­ing his/her duties;
  • to handle the assets of a person who is undergoing the procedure for appointment of a guardian or curator.

A de facto guardian is a person who acts in the interests of a person who may be incapacitated but for whom this has not been established by the courts. If the court authority becomes aware of the existence of a de facto guardian, it may require him/her to report on the situation of the person and the assets of the presumed incapacitated person and his/her relation thereto. The Judge may also decide to set up supervisory and control measures. The acts of the de facto guardian may not be contested if it is found to be in favour of the incapacitated person.

Capacity In Specific Domains

Contractual capacity

Article 293 of the Civil Code addresses the issue of a deal made by an incapacitated per­son who does not have the necessary authorisation. If a person for whom a curator has been appointed carries out a legal act for which the authorisation of the curator should have been obtained, the act may be annulled at the request of the curator or the person him/herself.

According to article 1888 of the Civil Code, a person who voluntarily takes charge of the administration of the business of another person, without any mandate from the lat­ter, must continue to do so until completion. Alternatively, the person can request the interested party to replace him/her in the management of the transaction provided that he/s/he is able to do so.

Testamentary capacity

There is a presumption of capacity with regard to making a will (and/or entering into a contract). If somebody wants to challenge the validity of a will, it is not necessary to have proof of the testator’s incapacity prior to the writing of the will but a person must nev­ertheless prove that when the will was executed the testator lacked capacity (Marquez and Mateos, 2008).

Criminal responsibility

According to article 20 of the Penal Code, a person who at the time of committing a crim­inal offence was unable to understand the illegal nature of the act or of acting according to that understanding due to any psychic problem or alteration, is exempt from criminal responsibility.

The court may impose measures to restrict their liberty (e.g. linked to driving and car­rying firearms) and may include admission into a medical or educational establishment or up to 5 years’ outpatient treatment at a medical or social/health care centre (Marquez and Mateos, 2008).


In Spain, the judge should determine for each person who lacks capacity and for whom a tutor or curator is appointed, if the person retains or not his/her right to vote.



Last Updated: Thursday 09 February 2017


  • Acknowledgements

    This report received funding under an operating grant from the European Union’s Health Programme (2014-2020). The content of the Yearbook represents the views of the author only and is his/her sole responsibility; it cannot be considered to reflect the views of the European Commission and/or the Consumers, Health, Agriculture and Food Executive Agency or any other body of the European Union. The European Commission and the Agency do not accept any responsibility for use that may be made of the information it contains.
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