Who acts for you if you lose capacity with no documents

Terms used

• Guardador de hecho — A guardador de hecho is someone who informally supports a person with a disability without a court order.
• Ministerio Fiscal — The Ministerio Fiscal is the public prosecutor's office, which protects people who need support and takes part in these court cases.
• Curator — A curator is a person the court appoints to support someone with a disability in decisions, in line with their wishes.
• Procurador — A procurador is a court representative who files and follows court paperwork on your behalf, alongside your lawyer.
• Colegio de abogados — The colegio de abogados is the local bar association, which can tell you about free legal aid.

Key rules

• Informal helper: A guardador de hecho can handle everyday matters but not significant decisions without court approval.
• Court route: Anything beyond everyday acts needs a judge to appoint support, with the prosecutor involved.
• Time: A court appointment often takes between three months and a year.
• Cost: You may pay no fees if the prosecutor starts the case or you qualify for free legal aid.

What happens if nothing is in place

Without documents, a relative or friend who already looks after you can act as a guardador de hecho. That person can handle everyday matters only. Anything bigger needs a judge to appoint formal support, and the public prosecutor takes part. This takes time and costs money.

What a guardador de hecho can do

A guardador de hecho is someone who informally supports a person with a disability, with no court order. They can carry on this way if it works well.

They can:

• Manage daily needs.
• Manage ordinary benefits.

They cannot, on their own, do acts that a curator would need court permission for. Examples are selling property or making any decision of significant value. For these, the court must authorise the act. It may also ask for a report or keep an eye on how things are managed.

The prosecutor's office (Ministerio Fiscal) can ask the guardador for information. It can also ask the court to set up formal measures.

The court route

When more is needed, a judge appoints a curator. The process is handled at the court of first instance where the person lives. These people can start it:

• The person concerned.
• Their spouse or partner.
• Their relatives.
• The Ministerio Fiscal, which must be involved and must act if it knows of the need.

The steps are:

1. An application is filed.
2. The judge hears the person and their relatives.
3. Medical or expert reports are gathered.
4. The prosecutor gives an opinion.
5. A judgment sets the support measure, how far it reaches and when it is reviewed.

Who the judge chooses

If you named nobody in advance, the judge picks the person best suited and takes your wishes into account. The judge looks first at a spouse or partner who lives with you. Next come your children, then your parents. After that come people you named and then siblings or other relatives.

The judge can change this order. The judge can also choose someone else, or a support institution, if that serves your interest.

Time and cost

Expect several months, often between three months and a year. The court's workload and the medical evidence needed both affect this.

Costs can include a lawyer, a procurador when one is required, and expert reports. The total depends on how complex the case is. You may pay no fees if the prosecutor starts the case or if you qualify for free legal aid. Ask your colegio de abogados for current figures and to check whether you qualify.

The checklist below walks through the steps in order.

Checklist

• Find the court of first instance where the person lives, because the application is filed there.

• Decide who will apply: the person concerned, their spouse or partner, or a relative. The prosecutor (Ministerio Fiscal) can also start the case.

• Ask a lawyer to prepare the application, and ask whether a procurador (court representative) is needed.

• Gather medical or expert reports on the person's situation for the court.

• Prepare the person and their relatives for the court hearing, where they will be heard.

• Ask your colegio de abogados (local bar association) whether you qualify for free legal aid.

• Plan for several months, often between three months and a year, before the judgment sets the support measure, its scope and the review period.

Check current timings and costs with your local bar association (colegio de abogados).

Frequently asked questions

Who can start the court process to appoint a curator?

The person concerned, their spouse or partner, relatives and the public prosecutor (Ministerio Fiscal) can all start the process. The prosecutor must be involved in every case and must act if it knows support is needed.

Who will the judge choose as curator if nobody was named in advance?

The judge appoints the person best suited, taking the person's own wishes into account first. The court looks in particular at a spouse or partner living with them, then children, then parents, then others the person named, then siblings or other relatives. The judge may change this order or choose a support institution if that serves the person's interest.

How long does a court appointment of support take?

It typically takes several months, often between three months and a year, depending on the court's workload and the medical evidence needed. Hearings and expert reports are the main steps that add time.

Do I have to pay to get a curator appointed by a court?

Not always: many applicants pay no fees if the prosecutor starts the case or they qualify for free legal aid. Otherwise costs include a lawyer, a procurador (court representative) when required, and expert reports.