LA SOLEMNIDAD FORMAL DEL PATRIMONIO PROTEGIDO A FAVOR DE LA PERSONA CON DISCAPACIDAD.

Abstract

Within the spectacular legislative progress Spain has made in recent years on the matter of disabilities, Act 41/2003 of 18 November on protection of the assets of persons with disabilities especially stands out. The act created, for the first time, a basic law governing the assets of persons with disabilities. It made significant modifications to classic institutions of Spanish law, and it created entirely new tools of indubitable legal impact, especially the concept of placing a body of assets under special protection to benefit a person with disabilities (whether legally incapacitated or not). The ex lege imposition of ad solemnitatem form, both to create the protected body of assets and to enlarge it with later contributions, has aroused a great deal of perplexity. This is because, first, the obstacles and difficulties that persons with disabilities and their relatives meet every day are already so numerous that legislation need hardly establish yet another legal hurdle, and, second, the Spanish system' s view toward contractual matters is essentially one based on consensus, so the formal solemnity required by the act strikes people as extremely odd. This paper considers the ritual formalism excessive, not so much for the creation of a protected body of assets, but for all subsequent contributions made to enlarge that body of assets; the great formality of the process may cause people to be reticent about making contributions, and thus it dulls incentive exactly where the act was intended to create incentive. This paper proposes an attenuation of the formal rigour required by the act (in addition to tax-related measures that must necessarily be much more generous than those currently applied) in order to favour to the utmost the creation and subsequent enlargement of protected bodies of assets, which are still very few.