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Legal Incapacity and Judicial Interdiction are very sensitive topics, due to the social, legal, and emotional repercussions they can have on a family or in general. Requesting the incapacitation of an elderly individual, and consequently, having them under Legal Guardianship, is not an easy decision to make and it is not a simple process.
Legal Guardianship is considered part of Family Law, which is a branch of Civil Law. When a person is mentally incapacitated, the process to follow would be to request Guardianship.
Even if the topic is as described above, the reality is that there are various scenarios in life that merit knowledge on the subject, and most importantly, it would be crucial to know how to handle one of these situations properly if you were to face them. As a result, this article mainly tries to be informative, cautious, and preventive as a precaution, detailing several topics on Incapacitation and Guardianship, specifically based on the following:
Having a person hand over their right to make decisions to someone else is a sensitive and highly questioned topic. From that moment, this person would be unable to:
Who is considered incapacitated in the Dominican Republic?
A mentally incapacitated individual is a person who by reason of the law or the decision of a competent court is unable to perform legal acts. In other words, they cannot manage their own assets or act in justice on their own behalf.
There are different types of incapacities in our country, which are related to the capacity to bear rights and responsibilities, act, or exercise.
Individuals under the age of eighteen, who are not emancipated, are represented by their parents, and lack the capacity to enter into or perform certain legal acts.
Minors do not have legal capacity, since they cannot perform legal acts on their own; moreover, minors are unable to bear rights and responsibilities and do not have political rights, given that they cannot elect or be elected.
For more information about this, and the conditions under which a Minor can perform Legal acts, click here.
In some cases, an adult’s mental state requires protection, which is where Judicial Interdicts come into play. Interdicts are persons who, although have reached legal age, are subject to a habitual state of imbecility, mental derangement, or madness and are consequently declared as interdicts by a Court.
It is based on the principle that in adults incapacity is not presumed, but must be declared. Subjects declared incapacitated by a judicial decision are in a state of interdiction and all their legal and commercial acts must be carried out through a designated guardian and with the consent of the Family Council.
As is well known, the rights of individuals are enshrined in the constitution, thus, this point is only reached if there is substantial medical proof that certifies this condition.
This type of incapacity is only applied to people who have been sentenced to criminal, ignominious and felony penalties. Incapacity of this nature causes people to lose their ability to act or their ability to exercise their rights.
When can someone be declared incapacitated?
The civil code of the Dominican Republic establishes three requirements to declare a person incapacitated and thus have them under a judicial interdiction. These requirements are:
Imbecility is a state of intellectual impairment characterized clinically by rudimentary mental aptitudes following insufficient brain development, whether it was congenital or acquired. An imbecile is considered to be of greater mental abilities than an idiot but less than a feeble-minded individual.
Etymologically, it is known as a mental state in which a person is mentally not their usual self and has a warped sense of reason.
Madness is an imbalance manifested in a distorted perception of reality, loss of self-control, hallucinations, and absurd and unreasonable behaviors.
That said, after identifying any of these characteristics, the process to follow in order to declare a person as incapacitated is established by the civil code of the Dominican Republic, which lists all the appropriate parameters.
The scope and effect of declaring a person as incapacitated, is that they would be declared under judicial interdict, making it so they cannot make decisions on their own accord.
Importance
It is indispensable to discern effectively when a person is incapacitated, especially to prevent risks to their health, patrimony, and business activities, which the individual might have constituted by themselves or inherited. After the determination of incapacitation, the aforementioned assets would be managed and used in the best interest of the incapacitated individual.
In addition to what we stated above, interdiction may be defined as a state of incapacity that prevents a person from performing legal acts on their own, thus needing a representative.
It can be stated that judicial interdiction is a protection from the State for those who have been issued an interdiction.
An interdict, according to the Dominican Civil Code, is seen as a minor, in terms of their person and property.
Any relative may request the interdiction of a family member. A spouse is also able to request it for their significant other.
The process for judicial interdiction is established in articles 489 to 512 of the Dominican Civil Code.
In accordance with Article 492 of the Dominican Civil Code, interdiction requests shall be filed with the Court of First Instance.
The suit must establish the facts of imbecility, mental insanity, or madness, and it falls on the party requesting the interdiction to provide proof, through the presentation of witnesses and supporting documents.
In accordance with Article 494, a family council needs to be established and this council needs to provide a “report on the state of the person whose interdiction was requested”.
In addition to the Justice of the Peace, the family council shall be composed of six relatives or nonfamily neighbors from the municipality where the guardian is to be appointed.
Articles 408 to 410 stipulate that if the six relatives and the justice of the peace, who represent the seven members of the council are not completed, the justice of the peace has the power to summon other relatives, or failing that, citizens “whose relations of friendship with the parents were known to the public” in accordance with the Civil Code.
The report from the Justice of the Peace must be presented to the Court of First Instance before the judge deliberates on the merits. In addition to that, the law establishes that the court, in the council chamber, will question the potential interdict and verify their mental health status prior to making any decisions.
After verifying the full scope of the situation and the evidence provided, if deemed appropriate, the judge will appoint an interim administrator who will take care of the person and property of the interdict, by means of a sentence.
Many recommendations can be made in relation to this topic; starting from a family, social, and judicial standpoint, any person who attempts to do business with an individual who is presumed to be incapacitated runs the risk of having said transaction annulled, even if there was no declaration of incapacity by judgment and/or pronouncement by business.
Therefore, the family council appointed by the court must be versed with this figure, to protect and safeguard every asset of the person, and ensure that said assets are used for the benefit, care, and prevention of that person, not for anyone else.
That being said, anyone who carries out transactions of any kind with a person who is clearly and visibly incapacitated, runs the risk of having that transaction declared invalid, which is why it is so important to be cautious in that regard and to make sure to comply with the provisions of the Guardianship. Failure to comply with the sentence or the process itself might result in the transaction being declared null and might cause negative legal implications for the party involved.
At our law firm Morillo Suriel Attorneys at Law, we have a division specialized in Family and Civil Law in the Dominican Republic. Through this division, we can assist you with any questions or concerns you may have regarding Legal Incapacitation. Our attorneys are available to assist you anywhere you might be in Santo Domingo, Dominican Republic and the world, through an Online Consultation or In-Person in our firm.
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