How Spanish law supports adults who lose capacity

Terms used

• Guarda de hecho — The guarda de hecho is informal support given by a relative or close person without any court order.
• Curatela — The curatela is the main court-ordered support measure, where a curator helps an adult make decisions.
• Autocuratela — The autocuratela is naming in advance the person you want as your curator if you later need one.
• Defensor judicial — The defensor judicial is a court-appointed defender for a specific matter or a conflict of interest.

Key rules

• No incapacitation: Support measures no longer remove an adult's legal capacity.
• Order of priority: Measures you choose yourself come first, and a court steps in only when they are not enough.
• Curatela reviews: A curatela is reviewed at most every three years, or exceptionally up to six.
• Foreign residents: If you live in Spain, Spanish law normally governs your protection.

What changed in 2021

Spanish law no longer declares adults "incapacitated". A reform in force since 3 September 2021 replaced that system with support measures. The person keeps their legal capacity and gets help to use it. Every measure must respect the person's dignity, equality, will, wishes and preferences.

Judicial guardianship (tutela) now applies only to minors.

The measures, in order of priority

Voluntary measures come first. Judicial measures apply only where there are no sufficient voluntary ones.

1. Voluntary measures you set up yourself. These are a preventive power of attorney (poder preventivo) and naming your own future curator (autocuratela). You choose the person while you still have capacity.
2. Informal help from a relative. The guarda de hecho is when a relative or close person already supports you without a court order. It continues as long as it works adequately.
3. Curatela. This is the main judicial measure. A court appoints a curator to support you. It is a last resort, tailored to you, and reviewed periodically, at most every three years or, exceptionally, up to six.
4. Judicial defender. The defensor judicial is appointed for a specific matter or when there is a conflict of interest, for example when the usual supporter's interests clash with yours.

Support, not replacement

Support usually means helping you decide, not deciding for you. Representation, where someone acts in your name, is exceptional. It is used only when you cannot express your will even with support.

Why planning ahead matters

If you arrange voluntary measures in advance, you choose who makes decisions and how. If you do nothing, a relative may help informally, or a court may have to appoint someone. A power of attorney or a self-designated curator lets you set that choice down before it is needed. The comparison below shows how the tools differ, and the decision tool below helps you pick between them.

If you are a foreigner living in Spain

Protection of adults follows the law of their habitual residence. So Spanish law normally applies to you if you live in Spain, and Spanish courts take jurisdiction. Spain has ratified the Hague Convention on the International Protection of Adults. Under it you can choose in advance, for a power of attorney, the law of your nationality, of a previous residence or of the place where your property is. If you move, the measures stay in place but are adapted to the new country's law. Cases involving another country depend on that country's rules, so get advice from a Spanish lawyer or notary if you own property or have family abroad.

Choosing between options

Which support measure fits your situation?

• Plan ahead yourself: You still have capacity and want to choose who will support you, through a preventive power of attorney or by naming your own future curator (autocuratela).

• Informal help from a relative (guarda de hecho): A relative or close person already helps the adult informally and it works well.

• Judicial curatela: There are no sufficient voluntary measures and the person needs ongoing support. A judge sets it up, tailored to the person and reviewed periodically.

• Judicial defender (defensor judicial): Support is needed only for a specific matter, or when the usual supporter has a conflict of interest.

Voluntary measures chosen by the person come first. Courts step in only where they are missing or not enough, and then use the lightest measure that works.

Power of attorney, advance directive and court-appointed support compared

The four tools cover different areas and apply at different times. None of them replaces another, so many people need more than one.

How they fit together

An ordinary power does not protect you if you lose capacity. If you want someone to keep handling your money after that point, you need a preventive power. Check that the document says so clearly.

A preventive power is not the same as an advance directive. Even if it covers health decisions, your own consent and your written wishes come first whenever you can express them. The person you named decides for you only as a last resort, in your interest and with respect for your dignity. Whether they can authorise a particular medical act depends on the situation and the medical team's assessment.

An advance directive does not cover money. It says nothing about bank accounts, property or bills.

Court support is the fallback, not the first choice. A court sets up support when nothing suitable was arranged beforehand, and it decides which areas the support covers. A court must also approve particularly serious acts, such as certain involuntary admissions to care, even when someone holds a power.

What to do

To cover both money and health, sign a preventive power for your finances and an advance directive for your medical wishes. A notary can advise on the preventive power. Doing both while you have full capacity keeps the decision in your hands rather than a court's.

Frequently asked questions

Which country's law applies if I am a foreigner living in Spain?

Spanish law normally applies if you habitually live in Spain, and Spanish courts take on the case on that basis.

How often is a curatela reviewed?

A curatela is reviewed at least every three years, or exceptionally every six. It is tailored to the person and only used when voluntary measures are not enough. The curator usually helps with decisions rather than deciding for you.

Does a guardian still decide everything for an adult with a disability?

No, guardianship (tutela) now applies only to minors, and adults keep their legal capacity. Support is meant to follow the person's own wishes and preferences.