Law 27/2013, On 19 December, On The Modification Of The Law 15/2004, Of 3 November, Qualified Incapacitation And Tutelars Bodies

Original Language Title: Llei 27/2013, del 19 de desembre, de modificació de la Llei 15/2004, del 3 de novembre, qualificada d’incapacitació i organismes tutelars

Read the untranslated law here: https://www.bopa.ad/bopa/026004/Pagines/83E7A.aspx

Law 27/2013, on 19 December, on the modification of the law 15/2004, of 3 November, qualified incapacitation and tutelars bodies since the General Council at its session of 19 December 2013 has approved the following: preamble the law 15/2004, of 3 November, tutelars bodies and qualified incapacitation was the first complete and systematic regulation of the Principality of Andorra of the incapacitation and internally in certain situations , as well as the tutelars institutions that allow you to give certain people the guardianship and protection that do not have a full capacity of self-government. In this way was to comply with the mandate that dimanava of the second final provision of the law on guarantees of the rights of persons with disabilities, adopted on 17 October 2002, article 22 of which regulated the incapacitation and guardianship with the provisional character, and allowed the repeal of this transitional regulation, as well as the Decree of 18 July 1973 on curation of minors , of section V of the Decree of 15 November 1975, relative to the guidance, and of articles 44 to 49 of the law on adoption and other forms of protection of the less helpless, of 21 March 1996, which also made reference to the guardianship and to the figure of the tutor.

As is clear from the preamble of the law 15/2004, of 3 November, tutelars bodies and qualified incapacitation, the latter had set up a legal framework for the inability fully adjusted to the principles emanating from the Constitution of the Principality of Andorra and in the public interest that informs everything that is related to the rights and freedoms of the person. At the same time, the detention was regularly taking into account the necessary respect for the fundamental rights recognized in the Constitution and in accordance with criteria eminently lawful interests. With regard to the institutions tutelars, until then governed in a partial and scattered, they developed, systematized and adapt to modern times.

Thus, the aforementioned Law has led to a breakthrough and a substantial improvement in the regulation of the incapacitation, internment and tutelars institutions that still offers a suitable legal framework and adapted to the current social and economic circumstances. However, the time elapsed since their entry into force is advisable to modify several of its provisions or adding new ones, in order to solve some shortcomings or option was the inaccuracies, especially with regard to the regulation of judicial procedure of incapacitation, bearing always in mind that have to prioritise the rights and interest of the people deserving of protection.

In this sense, the law extends the range of people or institutions authorised to promote the judicial declaration of incapacitation, and improves the incardination of the public prosecutor's Office in the corresponding process. At the same time and for the first time, it is anticipated the possibility of requesting the restoration of parental authority in the event that will promote the incapacitation, once the person concerned has reached the age of majority, as a logical corollary to the fact that this parental authority can be extended if the incapacitated person and even then a minor reaches the age of as expected, and included this assumption in the range of persons subject to guardianship.

With regard to judicial procedure, it introduces a new regulation on the civil procedure abbreviated so far are followed, in order to shorten and simplify the procedure, without wishing the procedural guarantees which must necessarily attend. In this sense, not only kept the need that the Mayor is an expert of the procedure examine personally the interested person and entrusting of mandatory form an opinion independent medical expert, but it also is forecast for the first time that the demand for incapacitation is sufficiently motivated and accompanied, wherever possible, of a medical certificate relating to the physical and psychic abilities of the person who seeks to incapacitar. At the same time, it is anticipated that the process may not exceed a period of six months and, on the merits of the principle of procedural economy, incorporate the necessary provisions to the effect that it is the same jutjador who adopt any provisional protection measures and issued the ruling that puts an end to the procedure, which must also set up the appropriate monitoring institution, without the need to start in a contemporary or later a procedure of voluntary jurisdiction as until now. All this within the framework of the same process and, if applicable, the period of execution of judgment with regard to the resolution of disputes over guardianship, the views and the Board for food of the person subject to a monitoring institution, and the appointment of the new tutor in the case that it has been appointed at the time stop in its functions.

On the other hand, and in order to confer a greater legal security, will require what are the acts of the incapacitated person which can be disputed and the deadline for expiration of the corresponding action, as well as the fact that the effectiveness of the acts performed before the firmness of the decision encompasses not only which revokes the incapacitation, but also to modify the scope and limits.

It has also introduced a modification to comply with the recommendation made by the European Committee for the prevention of torture and inhuman or Degrading Treatments of sentences and of the Council of Europe, concerning the guarantees in the media resource of physical containment of inmates, the report issued following the last visit made in the Principality of Andorra, at the end of the year 2011.


Also, unlike the tutor system by which he chose in his day the law 15/2004, of 3 November, tutelars bodies and ineligibility qualified, she decides to make the attribution from the position of tutor in a plurality of individuals or to a single legal entity, taking into account that it has been shown that in some cases this possibility allows us to offer better protection to the person subject to guardianship , and that the advantages outweigh the drawbacks that entails that showed the preamble of the above-mentioned Law – without prejudice to incorporate or keep the precautions necessary when there is more than one guardian appointed or when the persons subject to guardianship are sisters. At the same time, and to solve the problems that can arise in the vacation in the guidance, it is expected for the first time the possibility of requesting the appointment of tutors substitutes. It also extends, for practical reasons, the range of persons to request the judicial body the Constitution of a Council of supervision to manage a family company of which it forms part the auspices and, accordingly, its extinction.

Together, and in order to improve the protection of the person subject to guardianship or tutorship extends the necessary judicial authorization or the required assent of the curator to the fact that the guardian or minor emancipat or ability to age, as appropriate, may leave money on credit.

Finally, and to resolve the difficulty that sometimes figuring out what is the national law of the person lacking capacity for self-government in accordance with which should regulate the protective institutions, incorporates the subsidiary provision which may be of Andorran law application.

Article 1 amendment to article 2 modifies article 2 of the law of incapacitation and tutelars agencies, which is worded as follows: "Article 2.

Standing 1. Are legitimate in order to promote legal declaration of disability the same person interested, your spouse or the person with whom he has formed a stable Union of a couple, their descendants, his parents, his brothers, the public prosecutor's Office in fact guardador and the Ministry in charge of Social Affairs of the Government.

2. The public prosecutor's Office should always be part of the procedures of incapacitation from the start.

3. The incapacitation of a minor emancipated not only can promote their parents if they are enabled for the exercise of parental authority. If it gives rise to incapacitation, parental authority is extended to the disposal of the Law when the incapacitated person reaches the age of majority and is exercised in accordance with the provisions of the judgment of incapacitation and, moreover, in accordance with the General rules on parental authority.

4. If the demand for incapacitation is promoted when the person concerned has reached the age of majority, you can ask for the restoration of parental authority. "

Article 2 amendment to article 3 modifies the article 3 of the law of incapacitation and tutelars agencies, which is worded as follows: "Article 3.

Legitimation passive person subject of incapacitation can appear at trial with defense and representation, without prejudice to the necessary intervention of the public prosecutor's Office. In the event that the public prosecutor's Office has promoted the trial of incapacitation, the defence of the person are mentioned the judicial defender who is named or to the Attorney that designates the person concerned. "

Article 3 amendment to article 4 modifies the article 4 of the law of incapacitation and tutelars agencies, which is worded as follows: "Article 4.

Procedure 1. The disability process is initiated by a written request addressed to the Council.

2. The demand must specify the identity and the place where they can be cited the person subject to the disability process, their closest relatives and the doctor trying to, and you should also designate the persons proposed to be entitled to the protection institution, indicating their suitability. It also must contain the necessary motivation according to the requested incapacitation, we propose the appropriate test and, to the extent possible, should be accompanied by a medical certificate relating to the physical and psychic abilities of the person who seeks to incapacitar and to the need to adopt interim protection measures that are possible.

3. Within a period of five working days, the Mayor personally notify the demand to the person subject to the disability process and informs you of its contents and of the right to legal assistance. The lawsuit also will report to the public prosecutor, unless you've promoted the process of incapacitation. If the person concerned is not in a position to appoint a lawyer or do not wish to do so, is defended by the public prosecutor or a judicial defender in the terms of article 3.

4. During the procedure of incapacitation, the Mayor can adopt appropriate measures to protect the interests of the person who seeks to incapacitar, which are replaced by the provisions of the law, ruling that the incapacitation.

5. If the demand for provisional protection measures is presented before the claim that begins the process of incapacitation, is assigned, to turn, to the Mayor that corresponds, which is also competent to handle and resolve the process of incapacitation. In the event of temporary protection measures be taken, remain without effect if within a period of thirty calendar days not stands the claim that initiates the process of incapacitation. If the temporary protective measures requested in conjunction with the demand that begins the process of incapacitation, or subsequent to this demand, is competent to solve them the mayor who knows the process of incapacitation.

6. Once you have received a demand for interim protection measures, the Mayor summons the parties, the counsel or the court appointed advocate and public prosecutor's Office, for a joint appearance, with a view to decide only on if necessary to adopt the measures requested. The hearing must be held within ten working days of submitting the request.

7. in the event of appearance, the Mayor listens to all those present and adopted by means of a summons, if necessary, the measures required or who believe appropriate. These temporary measures are not binding for the respective claims of the parties in the procedure of incapacitation, nor can they pre-judge what will decide the sentence which ends the process.


8. The Mayor must examine personally the person subject to the disability process, in the presence of the public prosecutor's Office and the Attorney or legal advocate appointed, which also should be consulted in connection with the proposed people to be holders of the monitoring institution. Once the exploration of the person who seeks to incapacitar, and having listened to equally the people proposed to be holders of the monitoring institution and that the Mayor believes appropriate, the public prosecutor and the lawyer or legal defender in the case who have not promoted the process of incapacitation, can answer verbally the demand and proposed test.

9. Without prejudice to the evidence put forward by the parties, the judge may, even ex officio, the practice of all evidence that it considers appropriate, taking into account the purposes of incapacitation. In any case, the sentence cannot be decreed the incapacitation without that the Mayor has commissioned, ex officio or at the request of a party, an independent medical expert opinion.

10. After having practiced the proposed evidence ex officio or at the request of and after the Mayor has accepted, the latter communicates to the parties, to the Attorney or legal advocate appointed to the public prosecutor and the content of the tests above, and the summons within ten working days for presenting their findings verbally.

11. The Mayor can bypass, exceptionally, to notify and inform the person subject to the process of incapacitation of the content of the demand and of judgment, and consult it in relation to the proposed people to be holders of the institution responsible, if reasonably concludes that these actions can result in serious damage or if the certificate and the medical opinion that aunt working in is not in a position to take knowledge. In these cases, the demand and the statement will communicate to the lawyer and the court appointed advocate and, if applicable, the person that the Mayor understands more suitable for this purpose. The same exception may be applied to procedures outlined in the sections 6 and 10 of this article.

12. The process of incapacitation may not exceed a period of six months.

13. The conflicts arising from the keeper of the person subject to a monitoring institution, including the eventual establishment of a regime of visits and the payment of a pension for food, are resolved in execution of the sentence that decreed the incapacitation, unless the owners of the institution protect have urged a separation, divorce, annulment of marriage or regulation of paternofilials measures. The competent judge may segregate in time the decisions to save it, the regime of visits and to the Board for food.

14. waiver is null, the landscaping and the transaction that depends on the areas of incapacitation. "

Article 4 modification of article 5, paragraph 1 modifies article 5, paragraph 1 of the law of incapacitation and tutelars agencies, which is worded as follows: "1. The incapacitation produces its effects from the firmness of the decision that the States, except in the event that article 1, paragraph 2. The sentence has to determine the extent and the limits of the disability, the Constitution of the organism of protection depending on the disability established, the appointment of the persons entitled to the protection of the institution, and the origin of the internment of the incapacitated person. "

Article 5 article 7 modification modifies the article 7 of the law of incapacitation and tutelars agencies, which is worded as follows: "Article 7.

Legal position of the person incapacitated the acts carried out by the incapacitated person that the provisions of the law, that ruling versus offline incapacitation can be disputed at the request of their legal representative, of the same person incapacitated or its successors, in expiry period of four years from the date on which held the Act , of the day on which the person declared incapable regained their capacity or the date of his death. "

Article 6 amendment of article 9, paragraph 3 modifies article 9, paragraph 3 of the law of incapacitation and tutelars agencies, which is worded as follows: "3. The sentence that revokes that declared the incapacitation, or that modify so that it expands or reduces the extent and boundaries, does not affect the effectiveness of the acts performed before the firmness of the revocatòria or modificativa."

Article 7 Add a paragraph 3 in article 13 is added a paragraph 3 in article 13 of the law of incapacitation and tutelars agencies, which is worded as follows: "3. In any case, the means of containment of inmates can only be made with the prior approval of the physician who will attend, and after having carried out an assessment of the individual patient or in the case that is not possible, they should inform the doctor that treats, immediately and for the purposes of approval. The duration of the restraint must be limited in time and its possible extension beyond two hours requires a new medical assessment of the patient. In all cases you must state in writing when the beginning and the end of the measure adopted, the circumstances that have taken place, the identity of the doctor who has been approved and the staff that has executed and, where applicable, the fact of the injury caused to the patient eventually, the doctor or professional staff has been involved. "

Article 8 amendment of article 24, letter c) modifies article 25, letter c) of the qualified law of incapacitation and tutelars agencies, which is worded as follows: "c) people subject to parental authority extended or rehabilitated, in the cases provided in paragraphs 3 and 4 of article 2, when it ends, unless you apply the Constitution of a tutorship."

Article 9 Amendment of article 25 modifies the article 25 of the law of incapacitation and tutelars agencies, which is worded as follows: "Article 25.

Ownership of the charge


1. The guardianship is exerted by one or more natural persons or a single legal entity. In the event that there is more than one guardian, all act jointly, unless expressly stated otherwise in the ruling that decreed the incapacitation. The disagreements among the tutors will have to solve in the procedure of execution of sentence of incapacitation or in the procedure of voluntary jurisdiction proceedings and with the audience of the guardians, the child if you have at least twelve years of age or of the incapacitated person if you have enough knowledge.

2. Have to appoint the same tutors for all the brothers, unless by special circumstances will advise name several ones.

3. The person who promotes the process of incapacitation may request the appointment of tutors substitutes, in the case of vacation in the guidance. In the case of cessation of the tutor, substitute tutors have the guardianship until the Mayor named a new tutor. "

Article 10 Amendment of article 31, paragraphs 1 and 4 modify sections 1 and 4 of article 31 of the law of incapacitation and tutelars agencies, which are written as follows: "1. At the request of the person who appoints a tutor in anticipation of a future legal declaration of permanent incapacitation, the parents that named a for their children under the age for the case that you have to set up a guardianship , two relatives in a straight line descendant or ascendant of legal age, or of one of them and the consort or the person who has formed a stable Union of a couple with the incapacitated person, the Court may authorize the establishment of a Council of supervision to manage a family company of which it forms part the person under supervision, with the faculty that named a tutor and monitor management. "" 4. The Court, at the request of the public prosecutor's Office or of the persons indicated in paragraph 1 of this article, may be decreed the extinction of the Council of guardianship if the interest of the supervised person so requires or if its members do not meet properly the functions of the Office. "

Article 11 Amendment of article 33 article 33 of the law modifies the qualified incapacitation and tutelars agencies, which is worded as follows: "Article 33.

Appointment 1. The guidance is to sentence relapse in the process of ineligibility for aute won the procedure of voluntary jurisdiction, in the latter case with prior audience granted to the smaller if you have at least twelve years and the other people that the Mayor believes convenient.

2. The Mayor gives possession of the charge to the person who has to exercise the guidance in the procedure of execution of sentence of incapacitation, or in the procedure of voluntary jurisdiction mentioned in the previous section, once the appointment.

3. If the tutor were previously appointed cease in its functions, the appointment of a new guardian has been made also in the same procedure of execution of sentence of incapacitation or in the procedure of voluntary jurisdiction mentioned in paragraph 1. "

Article 12 Amendment of article 42, paragraph 1, letter c) modifies the article 42, paragraph 1, letter c) of the qualified law of incapacitation and tutelars agencies, which is worded as follows: "c) Taking money on loan or leave money on credit on behalf of the person under supervision."

Article 13 Amendment of article 57, paragraph 2, letter b) modifies article 57, paragraph 2, letter b) of the qualified law of incapacitation and tutelars agencies, which is worded as follows: "b") to take money on loan or leave money on credit. "

Article 14 Amendment of article 65, paragraph 1 modifies article 65, paragraph 1 of the law of incapacitation and tutelars agencies, which is worded as follows: "1. The protective institutions of people lacking capacity for self-government will regulate by law the national person incapacitated. However, if they are not credited the National Law of the incapacitated person, applies the Andorran Law. "

Transitional provision the rules of procedure provides that law will be applied to the processes that are started from the date it comes into force.

Without prejudice to the above, who have urged a procedure at the time of entering into force of the present Law may start within a period of six months a new procedure being exonerated from payment of legal fees.

First final provision is entrusted to the Government that, within a maximum period of one month from the entry into force of this law, published in the official bulletin of the Principality of Andorra the text of the law 15/2004, of 3 November, tutelars bodies and ineligibility qualified include the modifications introduced in this law.

Second final provision this law shall enter into force within 15 days to be published in the official bulletin of the Principality of Andorra.

Casa de la Vall, 19 December 2013 Vicenç Mateu Zamora Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.

Joan Enric Vives Sicília François Hollande Bishop of Urgell, President of the French Republic Co-prince of Andorra Co-prince of Andorra