Consortium Legal - El Salvador
  October 7, 2021 - El Salvador

El Salvador: Of the judicial proceedings for the declaration of incapacity and appointment of a guardian
  by Adriana Amaya

The judicial declaration of incapacity is the process that is followed before a family judge who after exhausting the due process declares a final judgment in which determines that a person suffers from a cause of incapacity that is that a person who must be fully capable to exercise his or her rights and obligation on his or her own is not, being necessary to carry out the proceedings where he or she is declared as incapable.


The causes for incapacity are regulated in article 293 of our Family Code which determines that such causes may be:


  1. The chronic and incurable mental illness even if there are lucid intervals.
  2. Deafness unless the deaf person can undoubtedly understand and de understood.

Regardless of the case that is presented the judicial authority will always direct its evaluative analysis to identify the cognitive abilities of the person and the capacity that he or she has to understand and interpret the reality that surrounds him or her, as well as the faculty to express him/herself with those around him/her, reason for which the law has been clear in determining that the second cause of incapacity only applies to the deaf who cannot be understood undoubtedly manner by any means. It should be noted that these causes find their legal basis in the civil code, since article 1318 established that these causes give rise to absolute nullity when persons with these characteristic concur into any type of contract or legal business.


For the aforementioned reasons is that the relevance of this type of proceedings is noticed considering that a person may be declared incapable at any time as long as it is proven that he or she is in some assumption of the law, in such sense, the family code recognizes the declaration of incapacity in minors as well as in adults. However the legal consequences to be applied should be different because of the age barrier, this difference could be explained as follows:


a) The declaration of incapacity of a minormay be requested by the parents exercising parental authority, the guardian or the Attorney General of the Republic, when there are sufficient indications that the incapacity will persist even after the age of majority. In such case, the parental authority or guardianship is extended in accordance with article 295 of the Family Code.


b) The declaration of incapacity of an elderly person, on the other hand may be exercised by any person with legitimate interest (whether parents, spouse, children, siblings or any close relative) and this gives rise to the reestablishment of parental authority to the parents provided that the incapable person has not founded a home, since if he/she has done so, the process of appointment of a guardian must be followed, for which the order set forth in article 291 of the Family Code must be followed.


However, regardless of the case, whether it is a minor or an adult the proceedings for the declaration of incapacity can be initiated and the claim for the reestablishment of parental authority or the appointment of a guardian can be accumulated as appropriate to the particular case.


In the case of the declaration of incapacity of an elderly person these proceedings initiated with the filing of the corresponding request in accordance with the applicable provisions of the Family Code specifically those regulated in articles 272 and following. In such request the petitioner must clearly and concisely state the facts on which the incapacity of the person is based as well as attach as evidence medical diagnoses or records that determines the disease from which the incapable person suffers, statement by at least 2 witnesses who attest to the incapacity and at the same time the suitability of the applicant to be appointed as a guardian all in accordance with article 277 of the family code.


The family judge at the moment of admitting the request must order the realization of a psychosocial study through the Multidisciplinary Team of The Family Court and in addition may order the realization of an expert examination at the Institute of Legal Medicine (IML by its spanish initials) as evidence to better provision, also the judge must convene a sentencing hearing in which will proceed to the reception of evidence and conclusions of expert opinions and psychosocial studies, then proceed to issue the final ruling, in turn ordering the marginalization of the birth certificate where it is established that the person has been declared incapable and who is the guardian appointed for his/her legal representation and good administration which is done through the Registry of the Family Status of the city hall where the person has registered.

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