By Establishing Rules For The Protection Of Persons With Mental Disabilities Are Held And The Conditions Of Legal Representation Of Incapable Set Emancipados

Original Language Title: Por la cual se dictan normas para la Protección de Personas con Discapacidad Mental y se establece el Régimen de la Representación Legal de Incapaces Emancipados

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ACT 1306 2009
(June 5th)
Official Gazette No. 47,371 of June 5, 2009 CONGRESS OF THE REPUBLIC

By establishing rules for the Protection of Persons with Mental Disability dictate and Legal Regime of the Representation of Incapable Emancipados is established. Summary

Term Notes


ARTICLE 1o. OBJECT OF THIS LAW. This law aims at the protection and social inclusion of all natural persons with mental disabilities or adopt behaviors that disqualify for its normal functioning in society.
The protection of persons with mental disabilities and their fundamental rights will be the guideline for interpretation and application of these rules. The exercise of the guards and counseling and asset management systems will have as main objective the rehabilitation and welfare of the affected. Effective Jurisprudence

Matches Article 2.
. Individuals with mental disabilities. A natural person has a mental disability when suffering from mental disabilities or behavioral, that does not allow you to understand the scope of their actions or assume excessive or unnecessary in the management of its assets risks.
The legal incapacity of people with mental disabilities will be correlative to his involvement, without prejudice to the bargaining security and the right of third parties to act in good faith.
PARÁGRAFO. The term "insane" currently appears in other laws, shall be deemed replaced by "mentally disabled person" and the assessment of their actions will apply the provisions of this Act as appropriate.

ARTICLE 3. BEGINNING. Protect and guarantee the rights of persons with mental disabilities the following principles are taken into account:
a) Respect for dignity, individual autonomy including the freedom to make one's own choices and independence;
B) Non-discrimination on grounds of disability;
C) Full and effective participation and inclusion in society;
D) Respect for difference and acceptance of persons with mental disabilities as part of human diversity and humanity;
E) Equality of opportunity;
F) Accessibility;
G) Equality between men and women with mental disabilities;
H) Respect for the evolving capacities of children with mental disabilities and their right to preserve their identity.
These principles are binding precedence over other provisions contained in this law.

ARTICLE 4. DIMENSION REGULATIONS. This law is complemented by the Covenants, Conventions and International Conventions on Human Rights relating to people in situations approved by Colombia, the bloc of constitutionality disability.
May not be restricted or curtailed on recognized and valid for people with mental disabilities in domestic law or international conventions, with the pretext that the present law does not recognize such rights or recognizes them to a lesser extent rights.
For the determination and interpretation of the obligations to protect and restore the rights of people with mental disabilities who are responsible for their protection, the provisions of the Code for Children and Adolescents and generally taken into account, in other rules of protection of the family, provided these are not contrary in letter or in spirit to the present law.

For purposes of interpreting the principle of prevalence of the most favorable to the individual with disabilities rule applies.

The 5th ITEM. OBLIGATIONS REGARDING DISABILITY. They are obligations of the company and the Colombian State regarding persons with mental disabilities:
1. Ensure the full enjoyment of all rights to people with mental disabilities, according to their exercise capacity.
2. Prohibit, prevent, investigate and punish all forms of discrimination on grounds of disability.
3. especially protect people with mental disabilities.
4. Create affirmative action measures that promote real equality for people with mental disabilities.
5. Establish regulatory and administrative measures according to the obligations under international treaties on Human Rights for people experiencing mental disabilities and necessary to implement national programs actions.
6. Encourage departments and agencies of the different orders of government work towards the social integration of people with mental disabilities.

7. Establish and develop policies and actions needed to implement national programs for people experiencing mental disabilities as well as those that ensure fairness and equal opportunities in the exercise of their rights.

ARTICLE 6o. THE FUNCTION OF PROTECTION. Protection of the subject with mental disabilities and gravel corresponds to the whole society, but preferentially be exercised by:
a) Parents and persons designated by them, inter vivos or mortis causa.
B) The spouse or permanent partner and other family members in order of proximity, preferring direct and collateral largest and consanguineous relatives civilians. Editor's Notes

C) Persons appointed by the judge.
D) The State through officials and institutions legitimately enabled.
They will be responsible for the custody and protection of those mental disabilities who ensure the quality and suitability of management and, therefore, the order established herein may be modified by the Family Court when it suits the interests of the affected.
The responsible for the protection of the individual subject with mental disabilities, this should ensure an adequate standard of living, including food, clothing and proper housing and continuous improvement of their living conditions and take appropriate measures to safeguard and promote the realization of this right without discrimination on grounds of disability.
PARÁGRAFO. When this law is mentioned spouse or related relatives, who included shall be construed in accordance with the Constitution and law, have such status in the family and extramarital civil. Where there are in a position two or more mutually exclusive people, the judge will prefer the person who has remained in last place with the subject, without prejudice to their powers of selection. Jurisprudence

ARTICLE 7. THE ATTORNEY GENERAL. Monitoring and control of public actions related to all those who are responsible for persons with mental disabilities, shall be exercised by the prosecution.

Article 8. FUNDAMENTAL RIGHTS. Individuals with mental disabilities have rights in relation to children and adolescents, devotes Title I of the Code for Children and Adolescents 2006- 1098 -Law or rules that substitute, modify or add and, likewise, those who consecrate themselves to people with physical disabilities, the elderly, displaced or threatened and other vulnerable population, as the situation of those who suffer mental disabilities is assimilable.
For the enjoyment and exercise of these rights will take into account the particular condition itself and the affected subject.
In the care and guarantee the rights of mentally disabled individuals in the principles dealt with in article 3 of this Act shall be taken into account.

Article 9. IDENTITY AND AFFILIATION. Individuals with mental disabilities should have defined their identity and affiliation with their seats in the Civil Registry.
Any measure of protection will be preceded by the steps and actions necessary to fully determine the identity of those who have disabilities and their genetic or legal family, as appropriate, and the registration of these data in the Civil Registry.
When it is not possible to test them, the competent officer shall immediately notify the Colombian Institute of Family Welfare to make this take the measures provided for in the law for its determination.

ARTICLE 10. PERSONAL DIGNITY AND RESPECT. In proceedings with respect to which is suffering from mental disability can not be violating the dignity and respect due to the human person.
If necessary resorting to measures that may cause discomfort to the patient for reasons of therapy, education, security or resocialization, these measures shall be limited to the extent necessary for the intended purpose and will always be temporary. The representative of the subject with mental disabilities in this situation will monitor these conditions are met.
People with mental disabilities can not be subjected to arbitrary or unlawful interference with his privacy, family, home, correspondence or other communication or attacks on his honor and reputation. PARAGRAPH 1.
. The rights of parents over their children with disabilities are limited in everything that is opposed to the welfare and development of these.
. While respecting cultural traditions, the regime of individuals with disabilities belonging to indigenous cultures is established in this law. The characteristics of these communities will be consulted when authorities concerned to implement the measures provided for in this law and its recommendations apply when not contradict the purposes and objectives set out here.

ARTICLE 11. HEALTH, EDUCATION AND REHABILITATION. No subject with mental disabilities may be deprived of his right to medical, psychological, psychiatric treatment, training, education and physical or psychological rehabilitation, with their level of deficiency, in order that they can achieve and maintain maximum independence, full physical , mental, social and vocational and inclusion and full participation in all aspects of life, according to the guidelines and scientific programs designed or approved by the National Advisory Committee for Persons with Limiting trying Law 361 of 1997.
the organization responsible for providing health services and education in Colombia take the measures necessary to obtain that no person with mental disability is deprived of access to these services from the early measures.
Recreation, sports, recreational activities and generally any activity aimed at stimulating the physical, creative, artistic and intellectual potential, are inherent health benefits, education and rehabilitation.
Costs demanded by the activities of health, education and rehabilitation provided herein will be included in the calculation of food services, congruas or necessary.

ARTICLE 12. HEALTH PREVENTION. People with mental disabilities are entitled to health services, including those related to sexual and reproductive health, free of charge, unless the strength of its own assets, direct or derived food delivery, enable it to assume such expenses .

The health care and assurance risks of life, health, labor or professional for those suffering from mental disabilities will be provided under the same conditions of quality and scope as other members of society. The exclusions in this area are made by health services or insurance, they have to be authorized by general or particular route by the National Advisory Committee for Persons with Limitation.
Those responsible for the welfare of people with mental disabilities take the necessary measures to prevent or limit the impact of external harmful agents in the mental or behavioral health of the subject and to prevent discrimination against them in the care of their health or their personal risk assurance because of their disability status.
Individuals with mental disabilities are released from fulfilling civic, political, military or religious duties whenever they can affect your health or aggravate their situation.

ARTICLE 13. RIGHT TO WORK. The right to work of those who are mentally disabled includes the opportunity to gain a living by work freely chosen or accepted in a stable job market and work environment that is open, inclusive and accessible under acceptable conditions of safety and health. The State shall guarantee individual and collective labor rights for workers with mental disabilities.
Employers are required to adopt processes of selection, training, retention and promotion to ensure equal conditions for people with mental disabilities who meet the requirements of the calls.
PARÁGRAFO. Labor remuneration will not lose a person with mental disabilities their right to food or welfare, unless this compensation exceed five (5) monthly minimum wage.
POPULAR ACTIONS AND CARE. Every person is entitled to apply directly or through Family Advocates or the public prosecutor, any judicial action intended to favor the personal condition of suffering mental disabilities.
Tutela has no place when it comes to defending the fundamental rights of the disabled person, but judges make their decisions after having heard the experts of the entity designated by the Government in accordance with the provisions of Article 16 of this law or a medical professional when these do not exist in the place. Effective Jurisprudence

People with mental disabilities.

ARTICLE 15. LEGAL CAPACITY OF INDIVIDUALS WITH DISABILITIES. Those who suffer absolute mental disabilities are unable absolutes.
Individuals with mental disabilities relative disqualified under this law, are considered incapable relative regarding those acts and transactions on which rests the disqualification. In other it will be to the general rules of capacity.

ARTICLE 16. ACTS OF OTHER PEOPLE WITH DISABILITIES. The assessment of the validity and effectiveness of actions taken by those who suffer temporary disorders that affect their clarity and are not subject to protection measures will remain governed by the ordinary rules.

ARTICLE 17. THE SUBJECT WITH ABSOLUTE mental disabilities. They are considered absolute mental disabilities who suffer a condition or disease severe or profound learning, behavioral or mental impairment.
The rating of disability will be following the scientific parameters adopted by the National Advisory Committee for Persons with Limitation and using an internationally accepted nomenclature.

ARTICLE 18. PROTECTION OF THESE PEOPLE. It corresponds to the Colombian Institute of Family Welfare, through the Family Ombudsman, providing personal and legal assistance to individuals with absolute mental disabilities of any age, ex officio or anyone to make complaint to the Bank.
The ICBF official or any other citizen who receives notice or complaint about someone with absolute mental disability requiring assistance, shall immediately inform the Family Ombudsman, to the effect that this appropriate to adopt administrative measures to restore rights or file legal actions.
PARÁGRAFO. The rules on infringement of the rights, procedures and measures to restore the rights contained in the Code for Children and Adolescents, shall apply to persons with absolute mental disabilities, as relevant and appropriate to the situation of these.

ARTICLE 19. ADDRESS AND RESIDENCE. Individuals with mental disabilities have the absolute address of its legal representative or guardian. The person with mental disabilities fixed place of residence if he has enough intellectual aptitude for this purpose and does not jeopardize their personal safety or community. Otherwise, the residence will be determined by the guardian, unless the competent authorities have otherwise.
The permanent change to another municipality or district and exit to the outside residence must be reported to the Family Advocate in advance not less than fifteen (15) days of such change. The Family Advocate will transfer to family court that is responsible for the record that has absolute mental disability and the registrar of the place where rest the birth record, for his office.
PARÁGRAFO. Ministries of Health in municipalities or districts will be a Book of Avecindamiento People with absolute mental disability, which will include the place of residence of these. This book will be reserved and may be consulted only with permission of the judge or the Family Advocate.
Anyone who becomes aware that a person with absolute mental disability resides or has ceased to reside in the jurisdiction of a municipality shall report the matter to the Municipal or District Secretary of Health, that, after verification, nods the information and inform the family court.
The Secretaries of Health of municipalities and districts will have pertinent to operate the Book of Avecindamiento referred to in this article, within the year following the entry into force of this law year and inform the Attorney General the nation. The failure to open the book on the deadline or not take in due form will be considered serious misconduct in disciplinary matters, subject to having to fulfill the relevant obligation.

ARTICLE 20. FREEDOM AND DETENTION. People with mental disabilities enjoy absolute freedom, unless his internment because of his disability is essential for health and patient therapy or tranquility and public safety.
The detention of patients is urgent or judicially authorized.

PARÁGRAFO. Freedom of movement recognized in this article includes the ability to move anywhere in the country and abroad, for which, the authorities shall provide the documents and the necessary support to the effect and take reference from your location only for purposes of protection.

ARTICLE 21. EMERGENCY psychiatric care. Patients with absolute mental disability may only penetrate in clinics or specialized urge qualified by the treating physician or expert body appointed by the Government to the effect or the Institute of Legal Medicine and Forensic Sciences.
The Director of the clinic or facility must inform the Institute of Family Welfare, within five (5) working days of inpatient admission emergency, linking the data on identity of the patient, clinical status and therapy adopted.
PARÁGRAFO. Emergency detention may not be extended by more than two (2) months, unless the judge authorized in accordance with the following article.

Matches ARTICLE 22.
psychiatric care judicially authorized. When the emergency situation it may not be for the family court to authorize the detention of psychiatric character of people with absolute mental disabilities. This authorization will be preceded by concept of the treating physician or expert body appointed by the Government to the effect on their necessity or convenience for the patient.
The judge will order placement in appropriate institutions and have the means to care and patient therapy, according to the disease entity.

ARTICLE 23. TIMELINESS OF DETENTION. Preventive detention for reasons linked to behavior is a temporary measure that will not exceed one (1) year but may be extended indefinitely for equal periods. Any extension must be preceded by the concept of treating or medical expert, who will record having observed and evaluated the patient within thirty (30) days prior to the date of presentation of the concept.
PARÁGRAFO. The judge, at the request of the person exercising custody or on its own initiative, request the medical concept for the renewal of the authorization to dispose of internment or exit, within thirty (30) days prior to expiration of this.

ARTICLE 24. END OF DETENTION. Psychiatric detention cease at any time is established by expert opinion that the causes that motivated it have disappeared.
Expiration of the term of detention provide that this cessation, at the request of anyone, including the patient, provided that does not jeopardize the welfare of the person with absolute mental disability, security of the family group or population .
Applications cessation of internment and resources will be resolved within the terms provided for the decision of the tutela and will lead to liability under such regulations for unjustified expiration of the terms.

ARTICLE 25. BAN OF MENTAL DISABILITY ABSOLUTE. Interdiction of persons with mental disabilities absolute is also a measure of restoration of the rights of the disabled and therefore anyone can apply.
Have a duty to cause the ban:
1. The spouse or permanent partner and consanguineous and civil relatives within the third degree (3rd). Editor's Notes

2. Directors of clinics and psychiatric and therapeutic treatment, for patients who are admitted to the facility.
3. The Family Advocate place of residence of the person with absolute mental disability; and
4. The Public Prosecutor of the place of residence of the person with absolute mental disabilities.
PARÁGRAFO. Relatives who, without proper reason, fail to comply with the duty to cause the ban and, therefore resulting damages to the person or property of the person with absolute mental disability, are unworthy to inherit; Directors of establishments and public officials incur grounds for misconduct.


ARTICLE 26. EXTENDED CUSTODY. Parents, Family Advocate or the Attorney General should request the interdiction of the person with absolute mental disabilities, once it has reached puberty and in any event before the age of majority. The ban has no consequence to keep this adolescent as an absolute incompetent and allow operate the legal extension of parental authority, compliance with the age of majority.
The judge imposed on the parents of the person with mental disability absolute obligations and personal care recommendations that would impose curators and, if deemed appropriate or requested by the Family Advocate, will require the submission of accounts and annual reports that treat articles 108 to 111 of this law. Editor's Notes

PARÁGRAFO. Extended parental authority ends:
1. The death of parents.
2. By rehabilitating the interdict.
3. Marriage or marital union declared the person with disabilities; and
4. On the grounds of legal emancipation.

ARTICLE 27. INTERIM BAN. While the case is decided, the family court may order the provisional ban the person with absolute mental disability, when it has an expert opinion to determine.

Matches ARTICLE 28.
OPINION FOR BAN. In any definitive interdiction process there will be a complete and technical opinion on the person with absolute mental disability by a the manner established in clause 2 of Article 16 of this Law interdisciplinary team composed. In that opinion the nature of the disease, its etiology and evolution, management recommendations and treatment and conditions of operation or performance of the individual roles will be needed.

ARTICLE 29. REVIEW OF BAN. When appropriate and at least once every year, the trial judge at the request of the guardian or of its own motion, review the situation of the person with mental disabilities absolute interdicted.
For this purpose, it shall order that the person with disabilities is practiced psychological and physical clinical examination by an interdisciplinary team of body designated by the national government to the effect or the Institute of Legal Medicine and Forensic Sciences.

ARTICLE 30. REHABILITATION OF INJUNCTION. Any person may request the rehabilitation of the interdict, even the same patient.
Rehabilitation receipt of the application, the judge will ask the relevant expert opinion and other evidence it deems necessary and, if it is the case, order the rehabilitation.
PARÁGRAFO. The judge, if he sees fit, may refrain from initiating proceedings on an application for rehabilitation if they have not six (6) months from the last processed request.

ARTICLE 31. BAN OF REFURBISHED AND MODIFICATION OF THE MEASURE. The rehabilitated may be interdicted again when necessary.
Under the same conditions of the preceding article, the judge may replace the ban by the bargaining disqualification when the situation of the person with mental disabilities warrants.


MEASURE ARTICLE 32. DISQUALIFICATION. People who suffer from deficiencies of behavior, prodigality or bargaining immaturity and as a result, may seriously jeopardize their heritage, may be disqualified from holding some legal transactions, at the request of his spouse, permanent partner, the relatives within the third degree of consanguinity and still affected by it.
Disqualification processes be advanced before the family court.
PARÁGRAFO. Disqualification will be necessary for the concept of experts appointed by the judge. Editor's Notes

Matches Jurisprudence

ACCESSORY. In the process of liquidation of assets and the payment by transfer of assets of natural persons, may be ordered as an additional measure failed disabling, at the request of the representative of the estate, creditors or informally by the judge.
The judge before whom later the bankruptcy proceedings against the bankrupt, shall have jurisdiction to order the accessory disqualification.

ARTICLE 34. SCOPE OF DISQUALIFICATION. The disqualification will be limited to businesses that, by their size or complexity, may require that the person with mental disabilities perform relative with the assistance of a counselor.

For the determination of the acts disability is taken into account the physical and psychological experts conduct assessment.
PARÁGRAFO. The judge, taking the forces of assets indicate an amount for personal expenses of the disabled and for self-administration, not to exceed fifty percent (50%) of net real income.

ARTICLE 35. STATUS OF DISABLED. The disabled retain their personal freedom and shall be considered as capable of all legal acts other than those on which rests the disability.

PROVISIONAL ARTICLE 36. DISQUALIFICATION. While the case is decided, the family court may order the provisional disqualification. That prohibition is limited to ordering that all acts of disposal assets worth more than fifteen (15) minimum monthly wages authorized by a legitimate or dative director appointed in the very act of disqualification.
DISABLED. The disabled will fix your home in accordance with the rules of the Civil Code. However, for those cases subject to disqualification so will the counselor.

ARTICLE 38. REHABILITATION OF DISABLED. Judge order the rehabilitation of the disabled at its request or counselor, previous technical evaluations of their behavior. Two (2) applications for rehabilitation should pass at least six (6) months.
The failed entitled to obtain their rehabilitation when you have satisfied the debtors who were present at the contest.

ARTICLE 39. OPPOSITION TO REHABILITATION. The counselor and any of the persons empowered to promote the process of disqualification, may oppose rehabilitation.
In any case, in the process of rehabilitation it will be summoned to those who promoted the process that led to the disqualification.
It will be up to the judge to decide on the feasibility and merits of the opposition.


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