What to do in case of Alzheimer
Fortunately, life expectancy is increasing in our society. However, this also means that there are more and more cases of neurodegenerative diseases, such as Alzheimer's, which result in people being unable to take care of their affairs. When it comes to everyday acts, in most cases, the relatives or their carers take care of them for the sick person, but when it comes to acts with legal significance, things change, because if the carer is not legally authorised to act on behalf of the sick person, we enter an impasse that may have no way out.
Thus, in raising this issue, we can envisage two different moments: (1) when the illness already exists, but has not yet rendered the person incapable of governing himself, and; (2) when the person no longer has capacity.
A) The person is already ill but can still act on his or her own - In these cases, it is best to be far-sighted and prepare the way for what is to come, and in this way you can:
1. Grant a "preventive power of attorney" before a notary, in favour of a person you trust, with it being expressly stated that this power of attorney will remain valid even in the event of judicial or de facto incapacitation. In this way, in the event that the person is no longer able to act on his own behalf, the attorney-in-fact can act on his behalf. It is an inexpensive and quick solution.
2.- Grant "Medical Directive". This is also known as a "living will". In this document, the person states how he or she wishes to be treated in the event of illness and in the event that he or she is unable to decide for him or herself. This not only solves the problem of family members and doctors coming into conflict due to disagreements about the treatment to be applied, but also allows the person concerned to "resolve" difficult decisions that would otherwise have to be left to their relatives, who may not know how to act.
3. Making a will. - In any case, whether you are ill or not, it is highly advisable to make a will, not so much with death in mind, but to specify who you want to be your guardian in case you become incapacitated. In this way, it also avoids many family arguments, when the time comes.
B) The person is already ill AND can no longer act on his or her own behalf - before September 2021, there was only one thing to do: to initiate incapacitation proceedings before the Court of First Instance of the locality where the ill person is domiciled in order to have the incapacity situation declared and a guardian appointed, with legal power to act on behalf of the incapacitated person. However, with the entry into force of Law 8/2021, this is no longer the case.
From now on, if the person has not previously established how to deal with the situation (by granting preventive powers of attorney or self-custody) in accordance with the above, the judge must be called upon, but the person will no longer be incapacitated and a guardian will be appointed, Instead, the judge will adjust the measures to be adopted to the real needs of the person concerned, with the aim of maintaining as many of the person's faculties as possible (which he/she will be able to carry out by him/herself), as the deprivation of rights of people with disabilities has become a thing of the past.
The truth is that in my experience since then, the system, although full of good intentions, is not very effective in many cases, as it constantly forces to resort to the court again to obtain authorisation for many operations that, it is more than foreseeable, will arise and that will need such authorisation, but this is only an opinion, and it depends on which factor we value more, individual freedom or legal certainty and speed in emergency situations. Therefore, for me it is more than obvious that the key is to make good use of all the "prior" or "self-guardianship" measures offered by the new law, and to create a "Prevention Plan for Surviving Incapacity", (PPIS), which can even be combined with an Inheritance Succession Plan, (PSH), which we will discuss in another post.
If you need more information about Alzheimer's, you can consult the Alzheimer Spain Foundation, www.alzfae.org.
Don't forget that you can contact me if you have any doubts by sending me an email with your query to dtierno@icacordoba.es.
David Tierno García
Attorney
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