APROXIMACIÓN A LA INSTITUCIÓN DE LA GUARDA DE HECHO.

Abstract

De-facto guardianship as a protective mechanism acquired legal recognition in the Civil Code after the reform instituted through Act 13/1983 of 24 October. The implementing regulation, however, is sparse; thus, a large amount of complementary and implementing work is left to legal doctrine. Some authorities opt to take a broad view of de-facto guardianship encompassing a large number of cases; others defend a more-restricted conception. At all events, the sphere of the protection afforded by de-facto guardianship covers minors and allegedly incapable people as stipulated in article 303 of the Civil Code, with respect to whom some of the functions characteristic of institutions of protection and guardianship are exercised. There are people who belong to certain especially vulnerable collectives, such as senior citizens. There are others who find themselves in certain situations (mental illness) or handicapped, who need someone to care for their person and property because of a non-incapacitating reduction of their physical or mental faculties. Protection for precisely these sorts of people does not necessarily require a court order declaring the people in question incapable in order to protect their person and estate (and to protect them from potential defencelessness). There are other instruments that can be used, which respect the natural capability and free expression of personality of the persons protected. One such instrument is provisional de-facto guardianship under court supervision. The administration itself may take on the role of de-facto guardian as a precautionary judicial measure (Civil Code, article 239.3, in response to a potential situation of defencelessness, with the ensuing lack of mental or physical assistance). In that context, this study focuses on an analysis of de-facto guardianship in both legal doctrine and case law. Account is taken of the way the concept is regulated in not only the Spanish Civil Code, but also Act 13/2006 of 27 December of Aragón on personal law and the Catalonian Civil Code after the approval of Book II on the person and family by Act 25/2010 of 29 July.