¿INCAPACITACIÓN = ANULACIÓN DE LA PERSONA?

  • Posted on: 9 April 2015
  • By: Noelia Martínez

¿En qué consiste la incapacitación?

A las familias con un miembro susceptible de ser incapacitado, en ocasiones se les presenta la duda de hacerlo o no, porque tendemos a pensar que con este hecho estamos anulando a nuestro familiar, ya no va a contar para la sociedad, y no nos va a traer más que problemas pero, ¿es esto así?, ¿tenemos claro lo que limita la incapacitación judicial?.

Partiremos de la distinción entre capacidad de obrar y capacidad jurídica:

      • Capacidad jurídica : capacidad que se adquiere con el nacimiento y que sólo se extingue con la muerte, por la que todo sujeto será titular de derechos y obligaciones.
      • Capacidad de obrar : capacidad para poder llevar a cabo en la práctica todo tipo de negocios jurídicos con eficacia válida. La capacidad de obrar no es igual para todos, porque ésta depende de la edad de la persona física, y también de la capacidad de autogobierno de las personas. Por tanto cuando se declarada incapaz judicialmente a un sujeto no se le está limitando ni anulada como persona. Esta limitación sólo estará en el ámbito jurídico con el fin de protegerle, por no poder desenvolverse por sí mismo en la vida. Como sujeto que requiere una especial protección se han articulado medios para que se puedan limitar la capacidad de obrar total o parcialmente, protección que se realizará a través de la tutela o curatela.

Para poder promover la incapacitación de una persona necesitamos que se cumplan una serie de requisitos previstos en el Código Civil así en el art.199 se dice que "Nadie puede ser declarado incapaz, sino por sentencia judicial en virtud de las causas establecidas en la Ley” Estas causas con las previstas en el art.200 "Son causas de incapacitación las enfermedades o deficiencias persistentes de carácter físico o psíquico, que impidan a la persona gobernarse por sí misma".Es decir es necesario que la persona que se pretende incapacitar tenga una enfermedad o deficiencia, y que ésta sea lo suficientemente grave como para anular o disminuir la capacidad de comprensión o la capacidad de actuar conforme a su voluntad, siendo todo esto que ser probado ante el juez. Los menores podrán ser también incapacitados, con un requisito más, la causa de la incapacidad tendrá que persistir al alcanzar la mayoría de edad, en este caso cuando el sujeto cumpla la mayoría de edad, la patria potestad de sus padres quedará automáticamente prorrogada.

¿Quién puede promover la incapacitación?

En la Ley de Enjuiciamiento Civil art.757 se establecen quienes son los legitimados para iniciar los procedimientos de incapacidad:

  1. El presunto incapaz, el cónyuge o quien se encuentre en una situación de hecho asimilable, los descendientes, los ascendientes, o los hermanos del presunto incapaz.
  2. El Ministerio Fiscal deberá promover la incapacitación si las personas mencionadas en el apartado anterior no existieran o no la hubieran solicitado.
  3. Cualquier persona está facultada para poner en conocimiento del Ministerio Fiscal los hechos que puedan ser determinantes de la incapacitación. Las autoridades y funcionarios públicos que, por razón de sus cargos, conocieran la existencia de posible causa de incapacitación en una persona, deberán ponerlo en conocimiento del Ministerio Fiscal.
  4. La incapacitación de menores de edad, en los casos en que proceda conforme a la Ley, sólo podrá ser promovida por quienes ejerzan la patria potestad o la tutela.

En resumen, podrán promover la incapacidad los familiares y el Ministerio Fiscal. Esta última posibilidad, suele ser desconocida por la mayoría de las familias pero resultará muy interesante cuando se precise la incapacitación del familiar y no se tengan muchos medios para ello.

Por último y volviendo al inicio, incidir en que incapacitar a un familiar no es anularlo en la sociedad, es PROTEGERLO, tanto de la responsabilidad derivada de sus actos, como de las tretas de terceros, que aprovechándose de su especial situación engañen y perjudiquen al presunto incapaz. Si está pensando en incapacitar a un familiar estamos aquí para ayudarle, le asesoraremos de cuál es el mejor procedimiento, hasta dónde limitar la capacidad de obrar de su familiar, como afrontar la tutela o curatela, etc.

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