De facto Guardian
The figure of the de facto guardian or de facto custodian has become increasingly relevant in the field of Civil Law, especially when it comes to dependent elderly people, minors or people with disabilities who need protection and care.
In this article we will explain what a de facto guardian is, how de facto guardianship works and we will differentiate it from other figures, even indicating how to formalise de facto guardianship before a Notary in Barcelona.
What is a de facto guardian?
The figure of the de facto guardian is increasingly relevant in the field of Civil Law. It is a person who voluntarily assumes the care and protection of another who cannot govern themselves. Examples would be minors, dependent elderly people, people with disabilities, but in cases where no tutor or curator has been appointed.
The de facto guardian must be of legal age and have full physical and mental faculties, and assume the assistance of the person in need. However, third parties, relatives, neighbours or friends can also be de facto guardians.
The de facto guardian is usually embodied in a person from the family context, such as parents, children or siblings, who provide support and assistance to those in need.
These support measures exercised by a de facto guardian are usually to exercise the legal capacity of the person represented and help with their basic life needs: such as administrative procedures or banking transactions, paying taxes, applying for aid, but also in personal care, hygiene or food shopping.
De facto custody in the Civil Code
This figure, which provides legal protection to people with disabilities, comes from Law 8/2021, of 2 June, which reforms the civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, and which introduced reforms in Title XI of the Civil Code.
De facto custody before a Notary
One of the changes introduced by Law 8/2021 is that de facto guardianship is processed in the long term, to protect dependent and disabled persons.
There are different ways to process it, such as through the statement of the person in need, through family testimonies or social services reports. However, processing a de facto guardianship before a Notary provides greater legal certainty than the other options, especially in transactions before administrations and banking entities.
To process it, a notoriety certificate of de facto guardianship is granted before a Notary.
However, this legal figure does not allow the de facto guardian to enter into contracts or legal transactions nor to request benefits that have economic relevance, so it should be limited to managing the usual income and expenses of the dependent or disabled person.
However, the law provides that this limitation can be extended through judicial authorisation for specific acts detailed in article 264 of the Civil Code.
De facto custody in Catalonia
In Catalonia, the de facto guardian has a specific figure, which is known as designation of assistance. If you live in Catalonia, you can learn all about it at this link:
Frequently Asked Questions about De Facto Guardianship for Older People or People with Disabilities
The best option to ensure good legal security as a de facto guardian is to submit a de facto guardianship application before a Notary. It is advisable to provide supporting documentation, such as medical reports or disability certificates.
While the guardian is appointed by a judge to exercise the legal guardianship of a minor or incapacitated person, the de facto custodian assumes protection and care without prior judicial appointment, focusing on daily assistance and management of basic needs. Therefore, the difference is that the de facto custodian is a factual situation, whereas the guardian is the person appointed by a Judge to assist a person.
The difference with guardianship is that this applies to certain acts. The guardian assumes partial legal functions and supervises specific acts to protect the interests of the represented person.
Record of De Facto Custodian at Notary in Barcelona
As we have seen, the de facto guardian is a key tool to protect people. If you need more information to make preventive powers or choose between the existing options, we invite you to contact our notary office in Barcelona. We will be happy to assist you at our contact email: bcn@jlanotarios.com.
