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Law 41/2003 Of 18 November, Heritage Protection Of Persons With Disabilities And Amending The Civil Code, The Civil Procedure Law And Tax Regulations For This Purpose.

Original Language Title: Ley 41/2003, de 18 de noviembre, de protección patrimonial de las personas con discapacidad y de modificación del Código Civil, de la Ley de Enjuiciamiento Civil y de la Normativa Tributaria con esta finalidad.

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TEXT

JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Courts have approved and I come to sanction the following law.

EXPLANATORY STATEMENT

I

There are many mechanisms that, in compliance with the mandate given to the public authorities by Article 49 of the Constitution, are trying to respond to the special situation of people with disabilities, by ordering the necessary so that the disability they suffer does not prevent them from enjoying the rights that all citizens recognize the Constitution and the laws, thus achieving equality between such persons and the rest of the citizens is real and effective, as required by article 9.2 of the Constitution.

Today is a reality the survival of many disabled people to their parents, due to the improvement of health care and other factors, and new forms of disability such as brain and spinal injuries. traffic accidents, Alzheimer's disease and others, which make it advisable that economic assistance to the disabled should not be made solely from the State or the family, but from the own heritage which will guarantee the future of the disabled in anticipation of other sources to cost the expenses to be addressed.

This law aims to regulate new mechanisms for the protection of people with disabilities, focusing on an essential aspect of this protection, which is the heritage.

Effectively, one of the elements that most impacts on the well-being of people with disabilities is the existence of economic means at their disposal, sufficient to address the specific vital needs of the same.

In large part, such means are provided by public authorities, be it directly, through public services aimed at these people, indirectly, through various instruments such as tax benefits or specific grants.

However, another important part of these means comes from the person with disabilities or his family, and is to this part that he tries to address this law.

II

In this way, the immediate object of this law is the regulation of a patrimonial mass, the particularly protected heritage of persons with disabilities, which is immediately and directly linked to the satisfaction of the the vital needs of a person with disabilities, favouring the constitution of this heritage and the free transfer of goods and rights to it.

The assets and rights that form this estate, which has no legal personality, are isolated from the rest of the personal estate of its owner-beneficiary, subject to an administration and supervision regime. specific.

This is a heritage of destination, while the various contributions are intended to satisfy the vital needs of their holders.

Beneficiaries of this property may be, exclusively, persons with disabilities affected by certain degrees of disability, and this regardless of whether or not the causes of incapacitation are present. Article 200 of the Civil Code and the fact that such persons have been legally incapacitated or not.

The regulation contained in this law is without prejudice to the provisions that may have been approved in the autonomous communities with their own civil law, which have preferential application according to the article. 149.1.8.a of the Spanish Constitution and the different statutes of autonomy, implementing this law with an extra character, in accordance with the general rule contained in article 13.2 of the Civil Code.

III

This property constitution corresponds to the person with a disability who is to be a beneficiary of the estate or, if the person does not have the capacity to act sufficient, to his parents, guardians or curators in accordance with the general mechanisms to replace the ability to act regulated by our legal system, or to your keeper in fact, in the case of people with mental disabilities.

The constitution requires, inexcusably, an original contribution of goods and rights, although once the patrimony has been constituted, any person with legitimate interest can make contributions to this patrimony, even the possibility that both the simultaneous contributions to the constitution of the protected patrimony and the subsequent ones can be made in spite of the opposition of the parents, guardians or curators, when the judge considers it to be beneficiary of the estate. In any case, third party contributions must always be made free of charge.

However, when the person with disabilities has the capacity to act sufficient, and in accordance with the general principle of personal autonomy and free development of the personality that informs our legal order (article 10.1 of the Constitution), it shall not be possible to constitute a protected patrimony for its benefit or to contribute to it against its will.

In addition, when the contribution is made by a third party, and by the third party any person other than the beneficiary of the estate is understood, including the parents, guardians or curators, constituents of the same, the contributor may establish the destination that the goods or rights provided must be given once the protected patrimony is extinguished, determining that such goods or rights shall revert to the contributor or his heirs or giving them any other lawful destination that he considers to be appropriate. However, this faculty of the contributor has a limit, since the departure of the good or the right provided from the protected patrimony can only be produced by extinction of this one, which eliminates the possibility of affections of goods and rights to term.

On the other hand, the existence of this patrimony, and the special administrative regime to which it is submitted, in no way modify the general rules of the Civil Code or, where appropriate, of the autonomous civil rights, relating to the various legal acts and businesses, which implies that, for example, where a third party makes a contribution to a protected heritage by donation, such a donation may be terminated for having been made in the form of fraud by creditors, the survivor's or children's survival or may be reduced by inofficious, if The requirements for this are met by the legislation in force.

IV

As for the administration of the estate, and the term administration is employed here in the broadest sense, understanding also of the acts of disposition, it is part of the general rule that all the goods and rights, Whatever their origin, they are subject to the system of administration established by the heritage constituent, which has full powers to establish the rules of administration that it deems appropriate, favoring this form the administration may correspond to non-profit-making entities specialised in the care for people with disabilities, but with a distinction, as:

When the constituent of the protected heritage is the beneficiary of it, and at the same time has the capacity to act sufficient, it applies without further the general rule expressed.

In all other cases, the rules of administration must provide for judicial authorization to be required in the same cases as the guardian requires it in respect of the property of the tutelated, although the judge may be able to to make this scheme more flexible in such a way as to be deemed appropriate where the circumstances in the case in question made it appropriate and in any event without the need for recourse to the public auction procedure laid down in the Law of Civil Prosecution.

Given the special management regime to which the protected heritage is subject, it is perfectly possible that, even if the beneficiary has the capacity to act sufficient, the wealth management does not correspond to the he, but a different person, be it because the person with a disability has so loved it, when the property itself has constituted the patrimony, be it because the constituent of the patrimony has so arranged and the beneficiary has accepted it, when the constituent is a third party.

On the other hand, where the beneficiary of the protected estate does not have the capacity to act sufficient, he or the administrators of the protected estate may not be the parents, guardians or curators to whom the law corresponds. Management of the rest of the person's disability with disabilities, which makes it convenient

that the law expressly provides that the legal representation of the person with disabilities for all acts relating to the protected heritage is not for the parents, guardians or curators, but for the administrators of the same, the legal representation is exclusively related to the acts of administration.

Likewise, the law regulates the extinction of the protected patrimony, which, leaving aside the special case that the judge can agree to the extinction of the same when it is so appropriate to the interest of the person with disability, only produces by death or death declaration of the beneficiary or by leaving the person suffering a disability in the grades established by law.

In such cases, special attention is paid to the goods and rights provided by third parties, which will be applied to the intended purpose of the contributor when making the contribution, although when it is material or legally impossible to fulfil this purpose will be given to another, as analogous and as possible to the will of the contributor, in a technique similar to the modal switch regulated by Article 798 of the Civil Code and taking care, if appropriate to the nature of the property and rights which integrate the protected heritage at the time of its extinction and in proportion to the different contributions.

V

Fundamental aspect of the content of the law is the supervision of the management of the protected heritage of persons with disabilities.

The first aspect of this supervision is that the constituent can establish the rules of supervision and control of the administration of the assets that it deems appropriate.

Second, the institutional supervision of the protected patrimony corresponds to the Fiscal Ministry, in respect of which two types of actions are foreseen, namely:

a) A permanent and general supervision of the management of the protected heritage, through the information that, periodically, the administrator must send to him.

b) A sporadic and concrete supervision, since when the concurrent circumstances at a certain time make it necessary, the Prosecutor's Office may request the judge to adopt any measure that is considered relevant for the benefit of the disabled person. For these purposes, the Prosecutor's Office may act either on its own initiative or at the request of any person, and shall be heard in all proceedings concerning the protected patrimony, even if they are not required by him.

On the other hand, the law creates the Commission for the Protection of the Heritage of Persons with Disabilities, whose basic function is to be an external organ of support, aid and advice of the Prosecutor's Office in the exercise of their functions, without prejudice to others which they may regulate.

Given the importance of this Commission, and the specialisation that its functions may require, it is expected that in any case, representatives of the public utility association, more representative at the state level, will participate in it. of the different types of disability.

Finally, two measures of important publicity are taken, since:

On the one hand, when the management of the protected patrimony does not correspond to the beneficiary himself or his parents, guardians or curators, the legal representation that the administrator holds on the beneficiary of the estate for all acts relating to it must be recorded in the Civil Registry.

On the other hand, it is anticipated that in the Land Registry the condition of a real property or right registered as an integral part of a protected patrimony is recorded.

VI

However, the content of the law does not end in the regulation of the protected heritage of persons with disabilities, but also incorporates different modifications of the existing legislation that try to improve the the protection of these people's assets, increasing the legal possibilities of affecting the economic means to meet the needs of these people or, in general, improving the legal treatment of people with disabilities. These modifications are made in accordance with the guidelines recommended by the General Coding Commission.

Of these, the regulation of self-protection, that is, the possibility that a person capable of acting to adopt the provisions that he considers suitable in anticipation of his own future training, is emphasized in the first place. which can be especially important in the case of degenerative diseases.

Effectively, if parents can already take the measures they consider to be appropriate for the person and property of their minor or disabled children, there are no obstacles to the same possibility for a person. with the ability to work enough with respect to himself, in the case of being incapacitated.

This self-protection is regulated by introducing minimum changes in the Civil Code, consisting in enabling people capable of adopting the provisions that they deem appropriate in anticipation of their own training, and this in the same precept that regulates the parental faculties with respect to the guardianship, and in altering the order of delation of the tutelage, preferring as guardian in the first place to the one appointed by the tutelado itself, although without modifying the generic faculty that the judge is responsible for altering the order of delation when it is appropriate to the interest of the incapacitated but provided that circumstances that were not taken into account when the designation was made have occurred.

In addition, it is guaranteed, by means of the appropriate mechanisms that the judge who is aware of the constitution of the guardianship can know the eventual existence of provisions relating to the same, be of the parents, own unable.

Complementary to this regulation of self-protection is the reform of Article 1732 of the Civil Code, in order to establish that the judicial intraining of the mandante, over the granting of the mandate, is not a cause of extinction. of which the mandant has provided for its continuation in spite of the lack of training, and without prejudice to the fact that such extinction may be agreed by the judge at the time of the establishment of the guardianship on the mandante or, at a later time, Guardian instance.

Finally, the alleged incapable of promoting his or her own incapacity is legitimate, thus modifying Article 757.1 of Law 1/2000 of 7 January of Civil Procedure.

VII

Second, different modifications of the right of succession are introduced. This way:

a) It is configured as a cause of indignity generating an inability to happen abdicate the failure to give the causative due during its

life, understanding for such foods regulated by Title VI of book I of the Civil Code, and this even if the cause was not one of the people forced to lend them.

b) It is permissible for the testator to be able to tax with a replacement would be the strict legitimate, but only when it will benefit a judicially incapacitated son or descendant. In this case, unlike others regulated in the law, as it is clarified through a new provision of the Civil Code, it is demanded that the judicial intraining of the benefit be met, and not the disability of the beneficiary in the degree established in the Article 2.2 of the Act.

(c) Article 822 of the Civil Code is reformed, providing direct property protection to persons with disabilities through a favourable treatment of donations or legacies of a room right made in favour of persons with disabilities who are legitimate and live with the donor or testator in the usual dwelling object of the right of room, while with the caution that the right of a legacy or donated room will be untransmittable.

In addition, this same precept grants the legitimary with a disability that he needs a legal legacy of the right of room on the habitual dwelling in which he would live with the deceased, even if he is safe from any disposition testamentaria from this one about the right of room.

(d) Article 831 of the Civil Code is reformed in order to introduce a new figure of indirect property protection for persons with disabilities. In this way, the testator is granted broad faculties so that in his will he can confer on the surviving spouse broad faculties to improve and distribute the inheritance of the dead one among the children or common descendants, which will allow not precipitate the partition of the inheritance when one of the descendants has a disability, and defer such distribution to a later time, in which the variation of the circumstances and the current situation and needs can be taken into account the person with disabilities. In addition, these powers may be granted by parents with common offspring, even if they are not married to each other.

e) A new paragraph is introduced to Article 1041 of the Civil Code in order to avoid bringing up expenses incurred by parents and ascendants, understanding of these assets, to cover special needs of your children or descendants with disabilities.

VIII

In the third term, it is introduced under Title XII of the book IV of the Civil Code, dedicated to random contracts, a succinct but sufficient regulation of conventional foods, that is, of the food obligation arising from the covenant and not from the law, unlike food between relatives regulated by articles 142 and following of that legal body.

The regulation of this contract, frequently held in practice and examined at times by the case law of the Supreme Court, extends the possibilities currently offered by the contract of life income to attend to the economic needs of persons with disabilities and, in general, of persons with dependency, such as the elderly, and allows the parties to conclude the contract to quantify the obligation of the feeder according to the vital needs from the feeder.

Its usefulness is particularly evident in the event that it is the parents of a disabled person who transmit to the feeder the capital in movable or immovable property for the benefit of their child with disabilities, through of a provision in favour of the third paragraph of Article 1257 of the Civil Code.

IX

Chapter III of the Law is dedicated to changes in the tax legislation, through which a series of measures are adopted to encourage contributions to protected assets free of charge, strengthening this way the important tax benefits which, in favour of persons with disabilities, has introduced Law 46/2002, of December 18, of partial reform of the Tax on the Income of the Physical Persons and by which the Laws are modified of the Corporation Tax and the Income of Non-Residents.

In this way, the law proceeds to amend Law 40/1998, of December 9, of the Tax on the Income of the Physical Persons and other Tax Rules, Law 43/1995, of December 27, of the Tax on Societies, and the Real Legislative Decree 1/1993, of 24 September, approving the recast of the Law on the Tax on Proprietary Transmissions and Documented Legal Acts, in order to regulate the tax regime applicable to the disabled the owner of the assets protected by the contributions which are included in the asset and the contributions to that assets for the contributions they make.

As for the tax regime applicable to the disabled owner of the estate protected by the contributions received in that estate, the law provides that such contributions will have the consideration of work up to the amount of EUR 8,000 per year for each contribution and EUR 24,250 per year as a whole when the taxpayer is a contributor to the Income Tax on the Physical Persons or has been a deductible expense in the Company Tax of the contributors subject to the limit of EUR 8 000 per year, where the taxpayer is a taxable person of that tax. However, they shall only be included in the taxable amount of the owner of the assets protected by the amount in which the sum of such income and the benefits received in the form of income referred to in Article 17 (3) of the Law 40/1998, in excess of double the inter-professional minimum wage.

Logically, when the contribution is made by taxable persons of the Corporate Tax in favour of the protected assets of the relatives, spouses or persons in charge of the workers of the contributor, they shall only have the Performance consideration of the job for the protected heritage holder.

In any case, these work yields are not subject to retention or income on account.

In the case of non-cash contributions, the disabled owner of the protected estate shall be subrogated in the position of the contributor in respect of the dates and the value of the acquisition of the good or the right provided, except for the possibility of applying the ninth transitional provision of Law 40/1998 where the right or right is transmitted after the contribution to the protected heritage.

The tax regime applicable to the owner of the protected estate is supplemented by a rule that the tax on Successions and Grants is not subject to the contributions that the recipient has for the consideration of returns from the job.

With regard to the system applicable to the contribution to the protected property of the disabled person, two cases are distinguished according to the taxpayer's tax on the Income Tax of the Physical Persons or Liability of the Company Tax.

Thus, in the first case, it is anticipated that the contributions made by the relatives in direct or collateral line up to the third degree, the spouse and

tutors or guardians, give the right to practice a reduction in the tax base of the contributor that you will be able to reach, for these contributions, a maximum amount of 8,000 euros per year.

The reductions practised in the tax base of the contributors will also have a joint limit, so that the total of the reductions practiced by all persons making contributions in favour of the same Protected heritage may not exceed EUR 24,250 per year. For these purposes, a proportional reduction clause of the applicable reduction is introduced in case the concurrence of several contributors exceeds the set limit set.

In any event, it is established that contributions exceeding the above limits may be entitled to reduce the taxable amount of the contributor in the following four tax periods, which is applicable both the cash contributions and the non-cash contributions.

In the second of the assumptions, this is, when the contributions have been made by taxable persons of the Tax on Societies to the protected assets of their workers or of the relatives or spouses of the workers, or of persons covered by the protection or accommodation scheme, it is envisaged that such contributions entitle to the deduction of 10% of the full quota provided for in Article 36c of Law 43/1995 of 27 December 1995, of the Corporate Tax. The annual contribution shall, in addition to the general requirements laid down in Article 36c, respect the limit of EUR 8 000 per year for each worker or disabled person, if it exceeds this limit, The corresponding deduction may be applied for the following four tax periods.

Regarding the valuation of non-cash contributions to the protected patrimony, the rule refers to the rules provided for in Article 18 of Law 49/2002 of 23 December of the tax regime of non-profit entities. profit and tax incentives for patronage, which deals with regulating the basis of deductions for donations, donations and contributions made to the beneficiaries of patronage.

In the case of non-cash contributions, and in accordance with the purpose pursued in the constitution of protected assets, the law declares exempt from the Income Tax of the Physical Persons and the Tax on Companies, respectively, the property gains and the positive income generated by the realization of such contributions.

On the other hand, the law deals with the tax consequences arising from the conduct of acts of disposition of the assets or rights belonging to the protected patrimony when such acts of disposition are carried out within the period between the tax period of the contribution and the following four, distinguishing according to the legal nature of the contribution.

In this way, if the person who made the contributions to the protected estate of the disabled person was a taxpayer of the Income Tax of the Physical Persons, this taxpayer will be obliged to integrate into the tax base of the the tax period in which the act of disposal occurs, the amounts reduced in the tax base corresponding to the provisions made more of the interest on late payment.

If the contributions to the protected patrimony were made by a taxable person of the Corporation Tax, the latter will be entered in the tax period in which the provision is made, the amount deducted in the quota in the the tax period in which the contribution was made.

In both cases, the holder of the estate must integrate into his tax base corresponding to the tax period in which the provision is made, the amount that he would have ceased to integrate in the tax period in which he received the contribution. This obligation is transferred to the employee when the contribution made by a taxable person of the Company Tax to the protected estate of a relative of that person.

Finally, in order to ensure adequate control of the protected assets of disabled persons, the obligation for the titular taxpayer of a protected estate to submit a declaration in the the composition of the assets, the contributions received and the provisions made during the tax period are indicated, referring to a subsequent regulatory development at this point.

The set of modifications in the tax regulations is completed with a new assumption of exemption in the Tax on Inheritance Transmissions and Documented Legal Acts that will be applicable to the contributions to the Protected assets of persons with disabilities.

CHAPTER I

Protected heritage of people with disabilities

Article 1. Purpose and legal status.

1. The purpose of this law is to encourage the free transfer of goods and rights to the assets of persons with disabilities and to establish appropriate mechanisms to guarantee the condition of such goods and rights, as well as of the fruits, products and their performance, to the satisfaction of the vital needs of their holders.

Such assets and rights will constitute the particularly protected heritage of people with disabilities.

2. The protected heritage of persons with disabilities shall be governed by the provisions of this law and its implementing provisions, the application of which shall be of a preferential nature to the provisions governing the effects of intraining on persons with disabilities. titles IX and X of book I of the Civil Code.

Article 2. Beneficiaries.

1. The protected heritage of persons with disabilities shall be the sole beneficiary of the person in whose interest it is constituted, which shall be the holder.

2. For the purposes of this law, only persons with disabilities shall be considered:

a) Those affected by a mental disability equal to or greater than 33 percent.

b) Those affected by a physical or sensory disability equal to or greater than 65 percent.

3. The degree of disability shall be credited by certificate issued in accordance with the provisions of the regulations or by a final judgment.

Article 3. Constitution.

1. They may constitute a protected heritage:

(a) The person with a disability benefit from the same person, provided that he has the capacity to act sufficient.

b) Your parents, guardians or curators when the person with disabilities does not have the capacity to work enough.

(c) The keeper of the fact of a person with a mental disability may constitute for the benefit of that person a property protected with the property which his parents or guardians have left to him or to receive in the pension provided by those who have been designated as a beneficiary, without prejudice to the provisions of Articles 303, 304 and 306 of the Civil Code.

2. Any person with a legitimate interest may apply to the person with a disability or, in the event that he has no capacity to act, his parents, guardians or curators, the constitution of a protected estate, while offering a the provision of adequate goods and rights, sufficient for that purpose.

In the event of an unjustified refusal of the parents or guardians, the applicant may turn to the prosecutor, who will urge the judge to do so, taking into account the interest of the person with disabilities. If the judge authorizes the constitution of the protected patrimony, the judgment shall determine the content referred to in the following paragraph of this law. The office of administrator shall not be liable, except for the right cause, to the father, guardian or conservator who has been unjustifiably denied to the constitution of the protected estate.

3. The protected heritage shall be constituted by public document, or by judicial decision in the case referred to in the preceding paragraph.

Such a public document or judicial decision shall have at least the following content:

a) The inventory of the goods and rights that initially constitute the protected patrimony.

(b) The determination of the rules of administration and, where appropriate, of oversight, including the procedures for the designation of persons who have to integrate the administrative or, where appropriate, audit bodies. Such determination shall be made in accordance with Article 5 of this Act.

(c) Any other provision that is considered appropriate with respect to the administration or conservation of the same.

Article 4. Contributions to the protected heritage.

1. The contributions of goods and rights after the establishment of the protected heritage shall be subject to the same formalities as laid down in the previous Article for their constitution.

2. Any person with a legitimate interest, with the consent of the person with disabilities, or of his parents or guardians or curators if he does not have the capacity to act sufficient, may provide property or rights to the protected estate. These contributions must always be made free of charge and cannot be completed.

In the event that the parents, guardians or curators unreasonably refuse their consent, the person who has offered the contribution may go to the prosecutor, who will urge the judge to do so in the interest of the person with disabilities.

3. In making the contribution of a good or right to the protected heritage, the contributors may establish the destination to be given to such goods or rights or, where appropriate, to their equivalent, once the protected heritage has been extinguished in accordance with Article 6, provided that sufficient goods and rights have been left and without any limitations other than those laid down in the Civil Code or in the rules of civil law, foral or special, which, where applicable, are applicable.

Article 5. Administration.

1. Where the constituent of the protected patrimony is the beneficiary himself, his administration, whatever the origin of the goods and rights that integrate it, shall be subject to the rules laid down in the public document of constitution.

2. In other cases, the rules of administration, as laid down in the public document of incorporation, must provide for the obligation of judicial authorization in the same cases as the guardian requires it in respect of the goods of the tutelated, in accordance with Articles 271 and 272 of the Civil Code or, where applicable, in accordance with the rules of civil law, foral or special, which are applicable.

By way of derogation from the preceding paragraph, the authorisation is not necessary where the beneficiary has the capacity to act sufficient.

In no case will the public auction be necessary for the disposal of the assets or rights that make up the protected patrimony, not being applicable to the effect in Title XI of book III of the Law of Civil Prosecution of 3 February 1881.

3. By way of derogation from the foregoing paragraph, the constituents or the administrator may request the Prosecutor's Office to request from the competent court the exception of the judicial authorization in certain cases, in respect of the composition of the of the assets, the personal circumstances of the beneficiary, the needs arising from his disability, the solvency of the administrator or any other circumstance of a similar nature.

4. All goods and rights that integrate the protected heritage, as well as its fruits, yields or products, must be destined to the satisfaction of the vital needs of its beneficiary, or to the maintenance of the productivity of the patrimony protected.

5. In no case shall persons or entities who cannot be guardians be administrators, in accordance with the provisions of the Civil Code or the rules of civil law, foral or special, which, where applicable, are applicable.

6. Where it is not possible to appoint an administrator in accordance with the rules laid down in the public document or judicial decision of the constitution, the competent judge shall provide as appropriate, at the request of the Prosecutor's Office.

7. The administrator of the protected estate, where it is not the beneficiary himself, shall have the status of a legal representative of the latter for all acts of administration of the assets and rights belonging to the protected estate, and not require the parent or guardian to contest their validity and effectiveness.

Article 6. Extinction.

1. The protected heritage is extinguished by the death or death declaration of its beneficiary or by leaving the person with a disability status in accordance with Article 2.2 of this law.

2. If the protected heritage has been extinguished by death or death declaration of its beneficiary, it shall be understood as being in its inheritance.

If the protected patrimony has been extinguished by leaving its beneficiary to comply with the conditions set out in Article 2.2 of this law, it will continue to be the holder of the goods and rights that integrate it, subject to the general rules of the Civil Code or civil law, foral or special, which, where applicable, are applicable.

3. The provisions of the above paragraph are without prejudice to the purpose which, where appropriate, should be given to certain goods and rights, as set out in Article 4.3 of this Law.

In the event that such goods and rights cannot be given the intended purpose by their contributors, they shall be given another, as analogous and as provided for by these, taking into account, where appropriate, the nature and value of the goods. property and rights which integrate the protected heritage and in proportion, where appropriate, the value of the various contributions.

Article 7. Monitoring.

1. The supervision of the management of the protected patrimony corresponds to the Fiscal Ministry, who will urge the judge to do so for the benefit of the person with disabilities, even the replacement of the administrator, the change of the rules of administration, the establishment of special control measures, the adoption of channels, the extinction of the protected heritage or any other measure of similar nature.

The Prosecutor's Office shall act on its own initiative or at the request of any person, and shall be heard in all proceedings relating to the protected heritage.

2. Where it is not the person with a disability who is a beneficiary of the estate or his parents, the administrator of the protected estate must be accountable to the Prosecutor's Office when it is determined by him and, in any case, annually, by means of the referral of a relationship of its management and an inventory of the goods and rights that form it, all of which is documented.

The Fiscal Ministry may require additional documentation and request any relevant clarifications.

3. As an external organ of support, assistance and advice of the Fiscal Ministry in the exercise of the functions provided for in this article, the Commission for the Protection of the Heritage of Persons with Disabilities, attached to the Ministry of Labour and Social affairs, and in which representatives of the public utility association, more representative at the state level, of the different types of disability will participate in any case.

The composition, functioning and functions of this Commission will be determined regulatively.

Article 8. Record recording.

1. The legal representation referred to in Article 5.7 of this Law shall be recorded in the Civil Registry.

2. When the domain of a real property or real right on the property is integrated into a protected patrimony, this quality will be recorded in the inscription that is practiced in favor of the person with disability in the Registry of the Property corresponding.

The same mention will be made in the other goods that have the character of registrables. In the case of participations in investment funds or collective investment institutions, shares or units in commercial companies which are incorporated in a protected estate, it shall be notified by the notary authorising officer or by the judge to the the manager of the same or the society, its new quality.

3. Where a right or right ceases to be part of a protected heritage, it may be required for the person to be the holder or to have a legitimate interest in the cancellation of the particulars referred to in the previous paragraph.

CHAPTER II

Amendments to the Civil Code and the Civil Procedure Law

Article 9. Amendments to the Civil Code on self-protection.

One. Article 223 of the Civil Code shall be worded as follows:

" Article 223.

Parents may in a will or notarial public document appoint a guardian, establish supervisory bodies, as well as appoint persons who have to integrate them or order any provision on the person or property of your minor or disabled children.

In addition, any person with the capacity to act sufficient, in anticipation of being legally incapacitated in the future, may in public document be able to adopt any provision relating to his or her own person or property, including the appointment of a guardian.

The public documents referred to in this Article shall be communicated by the notary authoritaire to the Civil Registry, for their indication in the birth registration of the person concerned.

In the training proceedings, the judge will seek certification from the Civil Registry and, where appropriate, from the registration of acts of last will, for the purpose of verifying the existence of the provisions to which it refers Article. "

Two. The first paragraph of Article 234 of the Civil Code is worded as follows:

" For appointment of guardian you will prefer:

1. A designated by the tutelate itself, in accordance with the second paragraph of Article 223.

2. The spouse who coexists with the tutelage.

3. To parents.

4. ° To the person or persons designated by them in their last-will provisions.

5. ° To the descendant, ascendant, or brother appointed by the judge. "

Three. A new paragraph is added to Article 239 with the following content:

" The public entity to which, in the respective territory, is entrusted with the protection of the incapable when none of the persons referred to in Article 234 is appointed guardian, will assume by law ministry the protection of the unable or when the latter is in a situation of distress.

It is considered to be a situation of helplessness that occurs in fact because of the non-compliance or the impossible or inadequate exercise of the duties incumbent upon it in accordance with the laws, when these are deprived of the necessary moral or material assistance. "

Article 10. Amendment of the Civil Code on succession.

One. Article 756 of the Civil Code is added with the following wording:

"7.".................................................................. Civil. "

Two. Article 782 of the Civil Code is amended as follows:

" Article 782.

Substitute replacements may never be encumbered by legitimate rights, except that they are subject to strict legitimate rights for the benefit of a son or a descendant judicially unfit in accordance with the terms laid down in Article 808. If they fall on the third for improvement, they can only be done in favor of the descendants. "

Three. A third paragraph is added to Article 808 of the Civil Code with the following wording, with the current third paragraph being fourth:

" When any of the children or descendants have been judicially incapacitated, the testator may establish a replacement for the third of the strict legitimate, with the children or descendants being fiduciaries. Legally incapacitated and trustees are forced coherends. "

Four. Article 813 of the Civil Code is amended, with its second paragraph being worded as follows:

" Nor may it impose on it a charge, nor a condition, or substitution of any species, except as regards the use of widower and the provisions of Article 808 in respect of children or descendants judicially disabled. "

Five. Articles 821 and 822 of the Civil Code shall be worded as follows:

" Article 821.

When the legacy subject to reduction consists of a farm that does not admit comfortable division, it will remain for the legator if the reduction does not absorb half of its value, and otherwise for the forced heirs; but that and They must be paid in their own money.

The licensee who is entitled to a legitimate right may retain the entire estate, provided that its value does not exceed, the amount of the available portion and the share that corresponds to it.

If the heirs or legatees do not want to use the right granted to them in this article, the estate will be sold in public auction, at the request of any interested party.

Article 822.

The donation or legacy of a right of room on the usual dwelling that its owner does in favor of a legitimate person with disability, will not be computed for the calculation of the legitimate ones if at the time of the death both are living in it.

This right of room shall be attributed by law ministry under the same conditions to the disabled person who needs it and who is living with the deceased, unless the testator has provided otherwise. or have expressly excluded it, but the holder may not prevent the other legitimisation from continuing to be lived in as long as they need it.

The right referred to in the preceding two paragraphs shall be untransmittable.

The provisions of the first two paragraphs shall not preclude the attribution to the spouse of the rights governed by Articles 1406 and 1407 of this Code, which shall coexist with that of the room. "

Six. Article 831 of the Civil Code shall be worded as follows:

" Article 831.

1. By way of derogation from the foregoing Article, the spouse may be entitled to a probate spouse so that, in the late case, the testator may be able to make improvements in favour of the common children or descendants even from the third of the free provision and, in general, the award or the allocation of specific goods by any title or successor concept or partition, including those which are subject to the goods of the dissolved conjugal society which is not liquidated.

These improvements, adjudications or attributions may be performed by the spouse in one or more acts, simultaneous or successive. If he has not been given the power to do so in his own will or has not been appointed, he shall have two years from the opening of the succession or, where appropriate, from the emancipation of the last of the common children.

The provisions of the spouse who are subject to specific and determined goods, in addition to conferring the property on the favored son or descendant, shall also confer the possession on him for the fact of his acceptance, except that in they set something else.

2. The surviving spouse shall be responsible for the administration of the goods in respect of which the powers referred to in the preceding paragraph are concerned.

3. The spouse, in exercising the powers entrusted to him, shall respect the strict legitimate rights of the common descendants and the improvements and other provisions of the causative in favour of those.

If the strict legitimacy of any common descendant or the share of participation in the goods relating to the cause of which the cause has been ordered is not respected, the injured party may request that the acts of the spouse be terminated in This is necessary to satisfy the injured interest.

The provisions of the causative shall be construed in favour of the common children or descendants and the legitimate ones where some or others are sufficiently satisfied even though in whole or in part they have been belonging only to the spouse exercising the faculties.

4. The granting to the spouse of the powers expressed shall not alter the regime of the legitimate or the provisions of the causative, where the one favored by one or another is not a common descendant. In such a case, the spouse who is not a relative in a straight line of the favoured person shall be empowered, in respect of the goods concerned to those powers, to act on behalf of the common descendants in the acts of execution or adjudication relating to such legitimate or provisions.

When a descendant who is not of the surviving spouse would have suffered unintentional preterition in the estate of the deceased, the exercise of the powers entrusted to the spouse may not impair the part of the preterid.

5. The powers conferred on the spouse shall cease from the date of the subsequent marriage or the analogous or any non-common child, unless the testator has provided otherwise.

6. The provisions of the preceding paragraphs shall also apply where persons with common offspring are not married to each other. '

Seven. A second paragraph is added to Article 1041 of the Civil Code with the following wording:

"Neither will be subject to the expenses incurred by parents and ascendants to cover the special needs of their children or descendants with disabilities."

Article 11. Amendment of the Civil Code on the mandate.

Article 1732 of the Civil Code shall be worded as follows:

" Article 1732.

The command ends:

1. º By revocation.

2. º By resignation or incapacitation of the president.

3. º By death, statement of prodigality or by contest or insolvency of the mandante or the president.

The command shall also be extinguished by the failure of the mandant to be incapacitated unless his continuation or the mandate had been given for the case of the mandant's inability to be appreciated according to the the provisions of this. In such cases, the term of office may be terminated by a judicial decision rendered upon the establishment of the tutoring body or at the request of the guardian. "

Article 12. Amendment of the Civil Code on the food contract.

One. A new Chapter II is created under Title XII of book IV of the Civil Code under the heading "Of the Food Contract", which encompasses Articles 1791 to 1797.

Two. Articles 1791 to 1797 of the Civil Code shall be worded as follows:

" Article 1791.

By the contract of food one of the parties is obliged to provide housing, maintenance and assistance of all kinds to a person during his life, in exchange for the transmission of a capital in any kind of goods and rights.

Article 1792.

In the event of the death of the obligation to provide the food or to attend any serious circumstance that prevents the peaceful coexistence of the parties, any one of them may ask that the supply of convinida food be pay by means of an upgradeable pension to be met by an early date for such events to have been provided for in the contract or, if it has not been provided for, by means of which it is established judicially.

Article 1793.

The extent and quality of the food supply will be the ones resulting from the contract and, in the absence of a pact to the contrary, will not depend on the vicissitudes of the flow and the needs of the obligor or those of the flow of the receives.

Article 1794.

The obligation to provide food shall not cease for the reasons referred to in Article 152, except as provided for in its first paragraph.

Article 1795.

Non-compliance with the food obligation shall entitle the feeder without prejudice to the provisions of Article 1792, to choose between requiring compliance, including the payment of the accruals prior to the demand, or the termination of the contract, with application, in both cases, of the general rules of mutual obligations.

Should the feeder opt for the resolution, the food debtor must immediately return the goods it received for the contract, and, instead, the judge may, in the light of the circumstances, agree that the refund which, with respect to the provisions of the following Article, corresponds to the feeder total or partly deferred, to its benefit, for the time and with the guarantees to be determined.

Article 1796.

Of the consequences of the termination of the contract, it will be necessary for the feeder, at least, a sufficient surplus to constitute, once again, an analogous pension for the duration of his life.

Article 1797.

When goods or rights transmitted in return for food are registrable, the right of the feeder to the registered covenant in which the non-payment of the goods is to be registered, may be guaranteed against third parties. explicit resolution condition, in addition to the mortgage right regulated in article 157 of the Mortgage Act. "

Article 13. Incorporation of an additional provision in the Civil Code.

An additional fourth provision is added in the Civil Code.

" Additional provision fourth.

The reference to persons with disabilities in articles 756, 822 and 1041, shall be understood as a reference to the concept defined in the Law on the protection of persons with disabilities and the modification of the Code Civil, the Law on Civil Procedure and the Tax Law for this purpose. "

Article 14. Amendment of Law 1/2000 of 7 January on Civil Procedure in the field of processes on the capacity of persons.

Article 757 (1) of Law 1/2000, of January 7, of Civil Procedure, will have the following wording:

" Article 757.

1. The declaration of incapacity can be promoted by the presumed incapable, the spouse or the person who is in a situation of fact equivalent, the descendants, the ascendants, or the brothers of the presumed incapable. "

CHAPTER III

Modification of tax rules

Article 15. Amendment of Law 40/1998 of 9 December of the Tax on the Income of Physical Persons and other Tax Rules.

With effect for the tax periods beginning on January 1, 2004, the following amendments are introduced in Law 40/1998 of 9 December of the Income Tax of the Physical Persons and Others Tax Rules:

One. Article 15 (4) is amended to read as follows:

" 4. The liquidable basis will be the result of practicing in the tax base, in the terms provided for in this law, reductions in income from work, extension of work activity, geographical mobility, child care, age, care, disability, contributions to protected assets of persons with disabilities, contributions and contributions to social security systems and compensatory pensions, which will give rise to the general and special liquidable bases. "

Two. A paragraph 4 is added to Article 16, which shall be worded as follows:

" 4. Contributions made to the protected heritage of persons with disabilities, regulated in the Law on the Protection of Persons with Disabilities and Amendment of the Civil Code, of the Law of Civil Procedure and of the Law To this end, they will have the following tax treatment for the disabled taxpayer:

(a) When the contributors are taxpayers of the Income Tax of the Physical Persons, they will have the consideration of income from the work up to the amount of 8,000 euros per year for each contributor and 24,250 euros per year together.

Likewise, and regardless of the limits indicated in the preceding paragraph, when the contributors are taxable persons of the Company Tax, they shall be considered to have income from the work provided that they have been deductible in the Company Tax with the limit of 8,000 euros per year.

These yields will be integrated into the taxable base of the disabled taxpayer holder of the protected estate for the amount in which the sum of such returns and the benefits received in the form of income Article 17 (3) of this law twice exceeds the inter-professional minimum wage.

When contributions are made by taxable persons of the Corporate Tax in favour of the protected assets of the relatives, spouses or persons in charge of the employees of the contributor, they shall only have the Performance consideration of the job for the protected heritage holder.

The returns referred to in this paragraph (a) shall not be subject to withholding or entry into account.

(b) In the case of non-cash contributions, the disabled taxpayer holder of the protected estate shall be subrogated to the position of the taxpayer in respect of the date and value of the acquisition of the assets and rights provided, but without, for the purposes of subsequent transmissions, the provision of the transitional provision in the ninth of this law.

The portion of the non-cash contribution subject to the Succession and Donation Tax shall apply, for the purposes of calculating the value and date of acquisition, as set out in Article 34 of this Act.

(c) Not subject to the Tax on Successions and Donations shall be the part of the contributions that the recipient has for the consideration of income from the work. "

Three. Article 46 (1) is amended and shall be worded as follows:

" 1. The general liquidable base shall be constituted by the result of practising in the general part of the tax base, exclusively and in this order, the reductions referred to in Articles 46a, 46b, 46c, 47, 47a, 47b, 47 quinquies, 47 sexies, 48, 48a and 48b of this law, without it being liable to be negative as a result of such decreases.

The special liquidable basis shall be the result of reducing the special part of the tax base in the remainder, if any, of the reductions provided for in the preceding paragraph without being liable to be negative as a result of such a decrease. "

Four. An article 47 sexies shall be added which shall be worded as follows:

" Article 47 sexies. Reductions in contributions to protected assets of persons with disabilities.

1. Contributions to the protected property of the disabled taxpayer by persons with whom the disabled person has a direct or collateral relationship of kinship up to and including the third degree, as well as by the spouse of the Disabled persons or those who are in charge of them under the supervision or accommodation scheme shall be entitled to reduce the taxable amount of the contribution, subject to the ceiling of EUR 8 000 per year.

All the reductions practiced by all persons making contributions in favour of the same protected heritage may not exceed EUR 24,250 per year.

For these purposes, where several contributions are made in favour of the same protected heritage, the reductions corresponding to those contributions shall be proportional in proportion to the total of these contributions without, in any case, the whole the reductions practised by all natural persons making contributions in favour of the same protected heritage may exceed EUR 24,250 per year.

2. Contributions exceeding the limits provided for in the preceding paragraph shall be entitled to reduce the tax base of the following four tax periods until, where appropriate, the maximum reduction amounts are exhausted in each of them.

The provisions of the preceding paragraph shall also apply in cases where the reduction in the amount of the tax base does not apply.

Where reductions in the tax base are met in the same tax period for contributions made in the financial year with reductions in previous financial years to be applied, they shall be applied in the first place. reductions from previous years until the maximum reduction amounts are exhausted.

3. In the case of non-cash contributions, it will be taken as the amount of the contribution as provided for in Article 18 of Law 49/2002 of 23 December on the taxation of non-profit-making entities and tax incentives. to patronage.

You will be exempt from the Income Tax of the Physical Persons the property gains that are made manifest in the contributor on the occasion of the contributions to the protected heritages.

4. They will not generate the right to reduce the contributions of elements affected to the activity that the tax payers make of the Income Tax of the Physical Persons who carry out economic activities.

In no case will the contributions made by the disabled taxpayer itself be entitled to a reduction.

5. The provision in the tax period in which the contribution is made or in the following four of any good or right contributed to the protected estate of the disabled person shall determine the following tax obligations:

(a) If the contributor was a taxpayer of the Income Tax of the Physical Persons, that contributor shall integrate into the tax base of the tax period in which the act of disposition occurs, the amounts reduced from the tax base corresponding to the provisions made in the interest of late payment.

(b) Any person who has been the holder of the protected heritage which received the contribution must integrate into the tax base of the tax period in which the act of provision occurs, the amount which would have been no longer to be included in the tax period in which it received the contribution as a result of the application of Article 16 (4) of this Act, plus any interest on late payment.

In cases where the contribution was made to the protected heritage of the relatives, spouses or persons in charge of the workers under a supervision or a host scheme, as referred to in paragraph 1 of this Article, by a taxable person of the Corporate Tax, the obligation described in the preceding paragraph must be met by that worker.

(c) For the purposes of Article 36c (5) of Law 43/1995 of 27 December 1995 of the Company Tax, the insured person shall inform the employer that he made of the the contributions, the provisions that have been made in the tax period.

In cases where the provision has been made in the protected heritage of the relatives, spouses or persons in charge of the workers under a supervision or a host system, the communication referred to in the paragraph This worker must also be made by the worker.

The lack of communication will constitute a simple tax violation, punishable by a fine of 100 to 800 euros.

For the purposes set out in this paragraph, in the case of homogeneous goods or rights, it is understood that they were provided in the first place.

The provisions of this paragraph shall not apply in the event of the death of the owner of the protected estate, the contribution or the workers referred to in Article 36c (2) of Law 43/1995, 27 of December, the Company Tax.

Five. A paragraph 5 is added to Article 86, which shall be worded as follows:

" 5. The taxpayers of this tax who are holders of the protected estate regulated in the Law on the Protection of Persons with Disabilities and Amendment of the Civil Code, of the Law of Civil Procedure and of the Law Tax on this purpose must provide a statement indicating the composition of the assets, the contributions received and the provisions made during the tax period, in the terms that are regulated set. "

Six. A new paragraph 5 is added to the additional fourteenth provision, which shall be worded as follows:

" 5. Persons who, in accordance with the provisions of Articles 3 and 4 of the Law on the Protection of Persons with Disabilities and Amendment of the Civil Code, the Law on Civil Procedure and the Tax Law with this Law The aim is to provide a statement on the contributions to the protected assets in the form of the contributions to the protected assets. The declaration shall be made at the place, form and time limit laid down by the Minister for Finance. '

Article 16. Amendment of Law 43/1995 of 27 December of the Company Tax.

For the purposes of the tax periods beginning on 1 January 2004, the title and the content of Article 36c of Law 43/1995 of 27 December 1995 on the Company Tax, which will be drafted in the following terms:

" Article 36c. Deduction for business contributions to employment pension schemes, to social security mutual societies acting as an instrument of social security provision or for contributions to protected assets of persons with disabilities.

1. The taxable person may make a deduction from the full 10 per cent of the business contributions charged in favour of workers with annual gross remuneration of less than EUR 27,000, provided that such contributions are (a) they shall be subject to employment pension schemes or to social welfare insurance schemes which act as a social security instrument for which the taxable person is a promoter.

2. The taxable person may also make a deduction from the total of 10% of the contributions made in favour of protected assets of workers with annual gross remuneration of less than EUR 27,000, or of their direct or collateral relatives up to and including the third degree, of their spouses or of the persons in charge of such workers under the supervision or accommodation scheme covered by the Law on the Protection of Persons with Disabilities and Amendment of the Civil Code, the Civil Procedure Law and the Tax Law with this purpose, according to the following rules:

(a) Contributions which generate the right to deduct the deduction provided for in this paragraph may not exceed EUR 8,000 per year for each worker or disabled person.

(b) Contributions exceeding the limit laid down in the preceding subparagraph shall entitle the deduction to be applied in the following four tax periods, until, where appropriate, the maximum amount which it generates in each of them is exhausted. the right to deduct.

Where deductions in the share for contributions made in the financial year are in the same tax period, deductions from previous financial years shall be made in the first place. from the contributions of the previous years, until the maximum amount generated by the right to deduction is exhausted.

(c) In the case of non-cash contributions, it shall be taken as the amount of the contribution as provided for in Article 18 of Law 49/2002 of 23 December of the tax regime of non-profit and non-profit entities. tax incentives for patronage.

The positive income tax will be exempt from the corporate tax on the occasion of the business contributions to protected assets.

3. In the case of workers with annual gross remuneration equal to or greater than EUR 27,000, the deduction provided for in paragraphs 1 and 2 above shall apply to the proportional share of the business contributions and contributions which correspond to the amount of the annual gross remuneration referred to in those paragraphs.

4. This deduction may not be applied in respect of contributions made under the transitional arrangements laid down in the transitional provisions fourteenth, fifteenth and sixteenth of Law No 30/1995 of 8 November 1995. Supervision of Private Insurance. It shall also not apply in the case of specific commitments undertaken with workers as a result of a record of employment regulation.

5. Where provisions of goods or rights are made to the protected heritage of the workers, their relatives, spouses or persons in charge of the workers under a supervision or a reception, in accordance with the terms laid down in the paragraphs (b) and (c) of Article 47e (5) of Law 40/1998 of 9 December 1998 on the Income Tax of the Physical Persons, the taxable person who made the contribution, in the period in which the requirements have been breached, together with the fee corresponding to his tax period, the amount deducted according to the provided for in this Article, in addition to interest on late payment. "

Article 17. Amendment of the Royal Legislative Decree 1/1993 of 24 September, approving the recast text of the Law on the Tax on Proprietary Transmissions and Documented Legal Acts.

With effect from 1 January 2004, a new paragraph 20 is added to Article 45.I (B) of the recast text of the Law on the Tax on Proprietary Transmissions and Documented Legal Acts, approved by the Royal Legislative Decree 1/1993 of 24 September, which will be drawn up in the following terms:

" 20. Contributions to the protected assets of persons with disabilities covered by the Law on the protection of persons with disabilities, amending the Civil Code, the Law on Civil Procedure and the Law Tax for this purpose. "

Additional disposition first. Acts of voluntary jurisdiction.

The legal proceedings provided for in Chapter I of this Law will be dealt with as acts of voluntary jurisdiction without the opposition that could be made to the promoted application to transform the file into litigation.

Additional provision second. Exemption in the Tax on Heritage.

The Autonomous Communities may declare the exemption in the Tax on Heritage, the goods and rights referred to in the Law on the protection of persons with disabilities, modification of the Civil Code, Law on Civil Procedure and the Tax Law for this purpose.

Final disposition first. Competence title.

This law is dictated by the provisions of Article 149.1.6., 8. and 14. of the Constitution.

Final disposition second. Regulatory development.

The Government shall adopt the necessary regulatory provisions for the development of this law within six months of its entry into force.

Final disposition third. Entry into force.

This law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore, I command all Spaniards, individuals and authorities, to keep and keep this law.

Madrid, 18 November 2003.

JOHN CARLOS R.

The President of the Government,

JOSÉ MARÍA AZNAR LÓPEZ