We continue with the compilation of procedures introduced by the Voluntary Jurisdiction Law, and having made a reference last week to the applications that it may have for employers, we are going to refer in this entry to the files on matters of voluntary jurisdiction in matters of persons, with special attention to Catalan law.
Although from a first reading, we can say that notarial powers in this matter are practically non-existent, limiting only the assent to adoption, which regulates article 177.2 Civil Code, the truth is that many of these matters have notarial interest, either because the file requires a prior notarial document, either because the notarial document requires a judicial resolution as a complementary requirement, or because the lawyer and solicitor are not needed, which can cause the Notaries to end up assuming some functions, which up to now their We had not made a resolution, although we did have its approach, subsequently referring it to lawyers and/or attorneys.
The Voluntary Jurisdiction Law has Article 149.6 CE as its title of competence, that is, It is considered as a procedural rule, but the truth is that it is not limited to developing the procedural requirements established by the substantive legislation, but rather introduces modifications in the substantive legislation itself.
On the other hand, in matters of personal law, the substantive and procedural aspects are closely related. Thus, for example, in matters of filiation actions, legitimacy is closely linked to the very definition of the action, and for this reason it has been considered a substantive regulation.
This will force us to determine the nature of the rules, to find out if the foral legislation or the Autonomous Communities is modified by the Voluntary Jurisdiction Law, since all interpretative doubts will not be covered with a brief twelfth final provision that tells us that "The references made in this Law to the Civil Code must be understood as made, where appropriate, also to the foral or special civil laws where they exist. I cite as an example if in Catalonia the assent to adoption can also be notarized, or it can only be judicial.
We pass to the enumeration of the files, relating them to Catalan legislation where appropriate.
1.- RECOGNITION OF NON-MARITAL FILIATION
a) Regulation.
thoroughly.-
a´´) Catalan law
Article 235-9 CCCat: Non-marital affiliation can be established by: a) Acknowledgment made in a will or codicil, in a public deed or before the person in charge of the Civil Registry.
Article 235-12 CCCat: For the effectiveness of the recognition of a minor or incapacitated person that is not done within the period set for the registration of the birth, judicial approval is required, with a hearing from the public prosecutor's office, the legal representative of the minor and, if known, from the other parent. The denial of judicial approval does not prevent the claim of filiation in accordance with the provisions of section 2 and with the same scope.
The recognition of a child already dead is only effective if it leaves descendants and those of the closest degree consent to it. If the descendants are minors or disabled, judicial approval is required, with a hearing from the public prosecutor's office. The refusal of consent or judicial approval does not prevent the claim of filiation in accordance with the provisions of section 2 and with the same scope.
B´´) Common law.- Articles 120 and following Civil Code
The Voluntary Jurisdiction Law completes the Civil Code in matters of filiation, differentiating three cases:
Article 23.2.- Recognition of incestuous filiation.
In this case, the Voluntary Jurisdiction Law requires judicial authorization.
In Catalan law it is a case subject to the general rules of recognition.
Article 23.3.- Recognition of the filiation of a minor or person with legally modified capacity.
In this case, the Voluntary Jurisdiction Law requires judicial approval:
In any case, provided that it is an acknowledgment made by someone who cannot marry due to age or who has been suspended at the request of the mother (paragraphs a and c).
Alternatively when the recognition does not have the express consent of a legal representative or the assistance of the curator of the recognized person or of the legally known parent, provided that it had not been recognized in a will or within the period established for registering the birth (section b).
The legislation of Catalonia requires for the effectiveness of the recognition of a minor or incapacitated person that it is not done within the period set for the registration of the birth, judicial approval is required, with a hearing from the public prosecutor's office, the legal representative of the minor and, if is known, from the other parent.
In other words, recognition is excluded from the representative powers of parents or guardians, since it is a very personal act, and judicial approval is necessary in any case.
23.4.- Non-marriage recognition by a person with judicially modified capacity.
Within the Voluntary Jurisdiction Law, judicial approval is required. The intervention of the Public Prosecutor derives from article 4 LJV.
Within the legislation of Catalonia, according to 235.2 CCCat, for the validity of the recognition made by unemancipated or disabled minors, judicial approval is required, with a hearing from the public prosecutor's office.
b´) Procedure.- Articles 23 and following of the Voluntary Jurisdiction Law.
Previously, the DGRN Instruction of November 30, 1989, already provided for the Voluntary Jurisdiction procedure.
b) Competition.- Court of 1st Instance.
C) Application.- The intervention of a lawyer or solicitor is not necessary.
D) Initiative.- The parent author of the acknowledgment, by himself or assisted by his legal representative.
2.- APPOINTMENT OF JUDICIAL DEFENDER
a) Regulation.
thoroughly.-
Article 224-1 CCCat.
The judicial authority must appoint a judicial defender in the following cases:
a) If there is a conflict of interest between the tutor and the ward, or between the curator and the person placed under conservatorship.
b) If the circumstances of the person who must be protected so require, while the guardianship is not constituted.
c) As long as the guardianship of prodigals or people in a situation of relative incapacity is not established.
d) In the cases in which for any reason the tutors or curators do not perform their functions, until the case is finalized or another person is not appointed to carry out the duties.
E) In other cases determined by law.
The assumptions are essentially coincident with those established in article 27 LJV, which in turn develops article 299 CC.
b´) Procedure.- Articles 27 and following of the Voluntary Jurisdiction Law.
b) Competition.- Judicial secretary.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- The file will be initiated ex officio, at the request of the Public Prosecutor, or at the initiative of the minor or person with judicially modified capacity or any other person acting in their interest.
3.- ASSENT TO ADOPTION
a) Regulation
thoroughly
Article 235-41 CCCat: The following persons must give their assent to the adoption, if they are not unable to do so:
a) The spouse of the adopter, except in the case of judicial or de facto separation, or the person with whom the adopter lives as a stable couple.
b) The parents of the adoptee, unless they are legally deprived of authority or incur in a cause of deprivation of this, or, in the case of pre-adoptive fostering, that the resolution that agreed to it has become final.
For its part, the Civil Code regulates this matter in a very similar way, omitting pre-adoptive foster care, in article 177.2 CC.
b´) Procedure
Within the Catalan Legislation the assent must be judicial.
The Voluntary Jurisdiction Law allows it to be carried out in a public deed or before the public Entity, with an antiquity of six months, in addition to before the judicial authority.
We consider this matter applicable to Catalonia by the provisions of the First Additional Provision LJV.
b) Competition. Court of 1st instance, Notary or public entity.
C) Application.- The intervention of a lawyer or solicitor is not necessary.
4.- GUARDIANSHIP, CURATORSHIP AND GUARDIAN IN FACT.
A) Regulation
thoroughly.- Constitution of guardianship and conservatorship, which is not requested within a procedure to modify the capacity of the person.
Requirement to the de facto guardian to report the situation of the person and assets of the minor, of the person with judicially modified capacity or of the person who should be, and of his actions in relation to them.
b´) Procedure. Articles 43 and following of the Voluntary Jurisdiction Law.
VERY IMPORTANT.
In the resolution agreeing to the appointment of a guardian or curator, the control measures of guardianship or conservatorship established by the parents in will or notarial public document, or by the affected person in the notarial public document granted in this regard, unless the interest of the affected person is otherwise.
In the absence of provisions or when they were not established in the interest of the affected party, ex officio or at the request of the Public Prosecutor or the applicant, in the resolution establishing guardianship or conservatorship or another subsequent one, the Judge may agree on the measures of timely surveillance and control, in the interest of the guardianship or conservatorship, as well as requiring the guardian or curator to report on the personal situation of the minor or person with judicially modified capacity and the status of the administration of their property.
THEREFORE, CORRECT WRITING OF THESE WILLS AND DOCUMENTS OF GUARDIANSHIP IS VERY IMPORTANT. SELF-GUARDIANSHIP
B) Competition. Court of First Instance of the domicile or, failing that, of the residence of the minor or person with judicially modified capacity.
C) Application.- The intervention of a lawyer or solicitor is not necessary, except in relation to the removal of the guardian or curator in which the intervention of a lawyer will be necessary.
D) Initiative.- It follows but is not expressly stated in Law of Voluntary Jurisdiction that will be the same persons obliged to promote the constitution of guardianship or conservatorship. Articles 210 CC and 222-10 Civil Code of Catalonia.
5.- ASSISTANCE (SPECIFIC CASE OF CATALAN LAW)
A) Regulation
thoroughly.-
Article 226-1 CCCat. 1. The person of legal age who needs it to take care of himself or his property, due to the non-disabling decrease in his physical or mental faculties, may request the judicial authority to appoint an assistant, in accordance with the provisions by this chapter, by the voluntary jurisdiction procedure.
b´) Procedure. Voluntary jurisdiction, without any specific processing.
Due to the referral made by article 226-6 CCCat, to the extent that they are compatible with the assistance function, to the rules on aptitude, excuse and removal of tutors, as well as those related to accountability, The most reasonable thing seems to be in the absence of specific regulation is to apply the rules on guardianship, conservatorship and guard in fact, previously reviewed.
B) Competition. By referral to the Court of First Instance of the domicile or, failing that, of the residence of the person for whom assistance is requested.
C) Application.- The intervention of a lawyer or attorney is not necessary.
D) Initiative.- The person of legal age who needs it
6.- OF THE JUDICIAL CONCESSION OF EMANCIPATION AND THE BENEFIT OF THE AGE OF MAJORITY
A) Regulation
thoroughly.- Article 314 CC.- . Emancipation takes place: 1. By the age of majority. 2nd By concession of those who exercise parental authority.3rd By judicial concession.
Articles 320 CC and 53 LJV (identical wording) The Judge may grant the emancipation of children over the age of sixteen if they request it and after hearing the parents:
1st When the person exercising parental authority marries or lives in a marital relationship with a person other than the other parent.
2nd when the parents live separately.
3rd When there is any cause that seriously hinders the exercise of parental authority.
Article 321 CC.- The Judge may also, following a report from the Public Prosecutor, grant the benefit of the age of majority to the subject of guardianship over the age of sixteen who requests it.
b´) Procedure. Article 53 following Law of Voluntary Jurisdiction.
B) Competition. Judge of First Instance of the domicile of the child
C) Application.- The intervention of a lawyer or solicitor is not necessary–
D) Initiative.- The minor over 16 years of age, with the assistance of one of their parents, not deprived or suspended of parental authority, or the guardian. In the absence of their assistance, the minor's judicial defender will be appointed to initiate the file.
7.- OF THE PROTECTION OF THE HERITAGE OF PEOPLE WITH DISABILITIES
A) Regulation
thoroughly.- Judicial actions provided for in Chapter I of Law 41/2003, of November 18, which develops article 56 of the law of voluntary jurisdiction.
b´) Procedure. Article 56 and following of the law of voluntary jurisdiction.
B) Competition. JCourt of First Instance of the domicile or, failing that, of the residence of the person with a disability.
C) Application.- The intervention of a lawyer or solicitor is not necessary–
D) Initiative.- Only the Public Prosecutor is authorized, who will act ex officio or at the request of any person, and must be heard in all legal proceedings related to protected assets.
8.- THE RIGHT TO HONOUR, TO PRIVACY AND TO THE OWN IMAGE OF THE MINOR OR PERSON WITH JUDICIALLY MODIFIED CAPACITY
A) Regulation.
thoroughly.- Article 2. Law 1/1982 of May 5, on civil protection of the right to honor, personal and family privacy and self-image: "The existence of illegitimate interference in the protected area will not be appreciated (...) when the owner of the right has given his express consent to that effect. Article 3.- The consent of minors and incapable persons must be presented by themselves if their conditions of maturity allow it, in accordance with civil legislation.
In all other cases, consent must be granted by written by their legal representative, who will be obliged to notify the Prosecutor's Office of the projected consent. If within eight days the Public Prosecutor objects, the judge will decide. (italics is modified by the law of voluntary jurisdiction)
b´) Procedure. Articles 59 and following of the law of voluntary jurisdiction.
B) Competition. Court of First Instance of the domicile or, failing that, of the residence of the minor or person with judicially modified capacity.
C) Application.- The intervention of a lawyer or attorney is not necessary-
D) Initiative.- Representatives of the minor or of the person or person with judicially modified capacity. In the case of the exercise of civil protection actions for the honor, privacy or image of a deceased person, it corresponds, whom the latter has designated for this purpose in his will, and in the absence of designation... (see article 4 LO 1/1982). EYE INTEREST OF THESE CLAUSES.
9.- OF THE AUTHORIZATION OR JUDICIAL APPROVAL FOR THE CARRYING OUT OF ACTS OF DISPOSAL, LIEN OR OTHERS THAT REFER TO THE PROPERTY AND RIGHTS OF MINORS AND PEOPLE WITH JUDICIALLY MODIFIED CAPACITY.
A) Regulation
thoroughly.-
common law: Articles 166 (parents), 271 (guardians) and 301 (judicial defender) Civil Code, and article 5 of law 41/2013 on protected assets.
Catalan Law: Articles 222-43 (guardians), 225-4 (judicial defenders who exercise guardianship functions), 227-4 (protected assets) and 236-27 (parents) Civil Code of Catalonia.
Regarding the authorization of tutors, it should be noted that "Judicial authorization is not required in relation to assets acquired by donation or succession title if the donor or the deceased have expressly excluded it." IMPORTANCE OF THE TESTAMENTARY CLAUSES IN SUCH SENSE.
Regarding the authorization of administrators of protected assets If the deed of incorporation does not establish anything regarding the powers of disposal and administration of the affected assets, articles 222-40 to 222-46 apply to the administrator, regarding the administration of the ward's assets. THEREFORE IT IS IMPORTANT TO ASSESS WHETHER IT IS ADVISABLE TO AVOID JUDICIAL AUTHORIZATION IN THE DEED OF INCORPORATION OF THE ESTATE.
Regarding parental authorization It can be replaced by the consent of the act, manifested in a public deed: a) Of the child, if he is at least sixteen years old. b) Of the two closest relatives of the child, in the manner established by article 424-6.1.a. THESE PROVISIONS MEAN THAT IN CATALONIA, PRACTICALLY, THE JUDICIAL AUTHORIZATION IS NOT USED IN HEADQUARTERS OF PARENTAL AUTHORITY
b´) Procedure. Articles 61 and following of the Voluntary Jurisdiction Law. The auction requirement contained in Article 2017 LEC 1881 disappears, which had already been excluded for protected estates. WITH THE NEW LAW OF VOLUNTARY JURISDICTION, DIRECT SALE IS ALLOWED.
B) Competition. Court of First Instance of the domicile or, failing that, of the residence of the minor or person with judicially modified capacity.
C) Application.- The intervention of a Lawyer or Attorney will not be mandatory provided that the value of the act for which the file is requested does not exceed 6,000 euros, their action being necessary in another case.
D) Legitimation.- The legal representation of the minor or person with judicially modified capacity for the purpose of carrying out the legal act in question, the curator or judicial defender in his case, as well as the one constituted as guardianship or conservatorship, if he had not been prohibited.
10.- DECLARATION OF ABSENCE AND DEATH
A) Regulation
thoroughly.- Articles 181 and following Civil Code
b´) Procedure. Articles 67 and following of the Voluntary Jurisdiction Law
B) Court of First Instance of the domicile or, failing that, of the residence of the minor or person with judicially modified capacity.
C) Postulation.- The intervention of a lawyer or attorney is not necessary-
D) Initiative.- Complete the Civil Code adding as legitimate person, the person who is united by analogous relationship of affectivity to the conjugal and establishes it exclusively to the Public Prosecutor in the cases of 193.2 and 3 CC (shipwrecks and air accidents)
11.- OF THE EXTRACTION OF ORGANS FROM LIVING DONORS.
Regulation.
thoroughly.- Article 4 c) of Law 30/1979, of October 27, on organ extraction and transplantation.
Obtaining organs from a living donor, for subsequent grafting or implantation in another person, may be carried out if the following requirements are met: (...) c) That the donor grants his consent expressly, freely and consciously, having to express it, in writing, before the public authority that is determined by regulation, after the explanations of the doctor who is to carry out the extraction, who is also obliged to sign the document. of assignment of the organ. In no case can the extraction be made without the prior signing of this document.
(…)
b´) Procedure. Article 78 of the Voluntary Jurisdiction Law.
B) Competence. Judge of 1st Instance of the town where the extraction or transplant is to be carried out.
C) Postulation.- The intervention of a lawyer or solicitor is not necessary–
D) Legitimation.- Request from the donor or communication from the Director of the Health Center where the extraction is to be carried out or the person delegated
