• Posted on: 13 April 2015
  • By: Noelia Martínez


Como apuntábamos en la entrada anterior mediante la incapacitación judicial no limitamos los derechos del incapacitado sino que lo protegemos, es por ello, por lo que una persona incapacitada judicialmente no está limitada ni anulada como persona, sólo que necesitará para actuar una tutela de otra persona.

A pesar de esta afirmación habrá una serie de derechos llamados personalísimos, inherentes a la persona, en los que,  en algunos de ellos el tutor no tendrá que intervenir,  en otros intervendrá con la autorización del implicado y otros dependiendo de las facultades del incapacitado no será posible su ejercicio. Este tipo de derechos no son un número cerrado, pero los que más suelen ejercitarse son los siguientes:


      • Derecho a realizar testamento: para que un incapaz no pueda ejercer este derecho debe de estar previsto expresamente en la sentencia de incapacitación.
      • Derecho al voto: al igual que en caso anterior de nuevo deberá de estar previsto expresamente. En caso de que no lo haga el incapaz tendrá que hacerlo libremente sin la presencia del tutor.
      • Derecho al trabajo: será necesario cierto grado de entendimiento para que pueda firmar su contrato de trabajo, aunque el tutor tendrá que velar porque el contrato no tenga ningún defecto y su caso instar la anulación del mismo.
      • Derecho a contraer matrimonio: el incapaz tendrá que entender en qué consiste el matrimonio y sus implicaciones, y para ello se someterá a un dictamen médico antes de prestar consentimiento.
      • Derecho a la separación matrimonial: por analogía respecto al anterior si tiene derecho a casarse, tiene derecho a separarse. En este caso el tutor podrá previa autorización judicial iniciar la demanda de separación de su tutelado.
      • Derecho a la propia imagen: si posee capacidad natural para consentir sobre la utilización de su imagen, en caso de que no la tenga el tutor podría decir sobre esto.
      • Derecho a decidir no tener hijos: es decir derecho a la esterilización, este derecho suele ser muy conflictivo para las familias,  ya que tiene como efecto que el incapaz no pueda tener descendencia biológica. Al tratarse de una decisión con tanta trascendencia, ni el incapaz ni su tutor podrán decidir sobre ella, será necesaria autorización judicial.
      • Derecho a interrumpir el embarazo: no está previsto en el Ordenamiento Jurídico por lo que en la práctica, cuando el tutor valora que debe practicarse un aborto a su tutelada se realiza sin más.


Como vemos, la incapacitación está dirigida a proteger al incapacitado,  no  anula como persona al sujeto que pretendemos incapacitar, sino que son muchos los derechos sobre los que éste decidirá, sobre todo los que afecten a su esfera más íntima y personal. No dude en acudir a un profesional que le oriente en caso de que tenga un familiar sobre el que tenga dudas de si podrá regirse por sí sólo.



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