Legal regime of the judicial defender after the reform operated by Law 8/2021, of june 2.

Abstract

The reform operated by Law 8/2021, of June 2, procedes to adapt our legal system to the International Convention of The Rights of Persons with Disabilities, made in New York on Decembre 13, 2006, wich provides that Persons with disabilities have legal capacity on equal terms with others in all aspects of life, and obliges States Parties to adopt the pertinent measures to provide persons with disabilities Access to the support to adopt the pertinent measures to provide persons with disabilities Access to the support they made need in the exercise of their juridical capacity. The new regulation is inspired by respect for the dignity of the person, in the protection of their fundamental rigths and in respect for the free will of the person with disabilities, as well as in the principles of necessity, proportionality and minimun intervention of the support measures that, where appropriate, that person may need to exercise their legal capacity on equal term with others.

            Thus, a system change is imposed based on respect for the will and preferences of the person who will make their own decisions and on the adoption of support measures whose function will be to assist the person with disabilities in the exercise of their legal capacity, in the areas where it is necessary, respecting their will, wishes and preferences. When specifying the supports, the new regulation gives preferences to voluntary measures, preventive powers and mandates acquire special importance, as well as the possibility of self-healing. Outside of them, it is worth highlighting the reinforcement of the figure of the facto guardian and also of the figure of the judicial defender, especially foreseen for certain types of situations, such as that in which there is a conflict o interest between the figure of support and the person with disability, or that in which there is a circunstancial impossibility for the usual support figure to exercise it or, as a formal support measure when need for support is required occasionally, even if it recurrent; or finally, as a complement to the capacity of the emancipated minor. In the context, the present study will to center on the analysis of the judicial defender, taking into account the double regulation that constitutes a novelty.

            Thus, on the one hand, we will deal with the legal regime of the judicial defender of the non-emancipated minor; and, on the other, that of the person with disability. Also, his actions regarding the emancipated minor.