Diego is a young boy who, like many others these days, was celebrating the end of the school year, specifically the end of high school. He is an only child and, after passing the entrance exam, he intends to start a career in marine sciences, since the marine universe is a passion inherited from his father, and fortunately, he can do so at a good French university.
All these hopes and wishes have been momentarily cut short, because on the day of the end-of-year celebration, he was run over by a car, and since then, for approximately a month, he has been in a coma. We all hope that we can see him recovered and that his family can once again lead a full, happy life, as they have always done up until now.
Misfortunes have a human component, and we are not going to deny that it is the most important, since your family life has been suspended and the wishes of family and friends are for a speedy recovery; but, there is also a legal part, which is reflected in the fact that when there is an accident, with a result like the one that occurred, there are proceedings, reports, and there will be a trial, with the purpose of determining the responsibility of each of those affected.
Diego cannot go anywhere at the moment, he cannot testify, but the legal machinery has already been set in motion, and his parents, friends, have come to my office to formalize the usual power of attorney for litigation.
Aware of his situation, I did not want to enter into the consideration that Diego, a few days before the accident, had turned 18 years old, and therefore is of legal age, which has the consequence that parental authority is extinguished, and the parents lose the power of representation over their son, who can only be subject to rehabilitation or substitution by a guardianship, constituted by the judicial authority.
¿Who can speak to parents in the situation they are in about these legal subtleties? Who better than them to determine who should take on Diego's legal defense? And as a Notary, what solution can I give them within the framework of the law?.
If the situation is prolonged over time, it is obviously necessary to establish a guardianship, and it is the parents' obligation to promote it. And if the judicial authority is aware that a person must be placed under guardianship, the Public Prosecutor's Office will assume the representation and defense of the person.
This situation is likely to occur in Diego's case, but on the other hand, it means removing all authority from the parents, and above all, it is detrimental to him, whose defense will be immediately constituted.
In situations like these, which are not daily, but occur more frequently than necessary, I have been professionally forced to resort to the figure of the de facto guardian, a figure with little regulation, but which perhaps, without the knowledge of those affected, is used very frequently.
¿And how does this figure act in notarial practice?
Saying that the parents act as guardians of the eldest son, but without legal representation. However, I always have a doubt. Will someone deny Diego's legal representation? What will the Public Prosecutor's Office do? Will the procedure be suspended until a legal defense is established?
The law only tells me that “Acts carried out by the de facto guardian in the interest of the minor or presumed incapacitated person may not be challenged if they are beneficial to the minor or presumed incapacitated person.”
I have no doubt about the goodness of the parents' actions.
