El Gobierno aprueba el anteproyecto de ley para sustituir la incapacitación judicial de las personas con discapacidad por la curatela
El Gobierno, a propuesta del Ministerio de Justicia, ha aprobado este martes el Anteproyecto de Ley por el que se reforma la legislación civil y procesal en materia de discapacidad y el plan de choque para aliviar la acumulación de litigios derivada de la crisis sanitaria del Covid-19.
La nueva ley busca eliminar del ámbito de la discapacidad la tutela, la patria potestad prorrogada y la patria potestad rehabilitada por tratarse de «figuras demasiado rígidas y poco adaptadas al sistema de promoción de la autonomía de las personas adultas con discapacidad que ahora se propone», tal y como recoge el anteproyecto.
De este modo, el anteproyecto propone sustituir la «incapacidad» e «incapacitación» de las personas con discapacidad por la curatela.
Esta reforma persigue que las personas con capacidad puedan ejercer su capacidad jurídica en el futuro de una forma mucho más autónoma y con menos tutelaje.
«No se trata, pues, de un mero cambio de terminología que relegue los términos tradicionales de “incapacidad” e “incapacitación” por otros más precisos y respetuosos, sino de un nuevo y más acertado enfoque de la realidad, que advierta algo que ha pasado durante mucho tiempo desapercibido: que las personas con discapacidad son titulares del derecho a la toma de sus propias decisiones, derecho que ha de ser respetado; se trata, por tanto, de una cuestión de derechos humanos», afirma el anteproyecto.
«Cambio de paradigma»
En la rueda de prensa posterior al Consejo de Ministros el titular de Justicia, Juan Carlos Campo, ha explicado que «se está actuando de manera contundente para conseguir que la toma de decisiones de las personas con discapacidad sea fruto de su voluntad y preferencias, y no sean sustituidas en la toma de decisiones de lo que les afecta».
“Es una norma que implanta un cambio de paradigma”, ha subrayado. La reforma evitará que, como ocurría hasta ahora, un altísimo porcentaje de las denuncias o avisos recibidos por la fiscalía terminasen en la incapacitación de miles de personas, “lo que implica la muerte civil de las mismas”, ha señalado Campo.
La reforma normativa impulsada por esta ley, recoge el anteproyecto, «debe ir unida, por ello, a un cambio del entorno, a una transformación de la mentalidad social y, especialmente, de la de aquellos profesionales del Derecho –jueces y magistrados, personal al servicio de la administración de justicia, notarios, registradores–
que han de prestar sus respetivas funciones, a requerimiento de las personas con discapacidad, partiendo de los nuevos principios y no de visiones paternalistas que hoy resultan periclitadas».
Así, el Gobierno busca dar mayor protagonismo a la curatela, como principal medida de apoyo de origen judicial para las personas con discapacidad.
«El propio significado de la palabra curatela –cuidado–, revela la finalidad de la institución: asistencia, apoyo, ayuda en el ejercicio de la capacidad jurídica; por tanto, como principio de actuación y en la línea de excluir en lo posible las actuaciones de naturaleza representativa, la curatela será, primordialmente, de naturaleza asistencial».
No obstante, agrega el texto, «en los casos en los que sea preciso, y solo de manera excepcional, podrá atribuirse al curador funciones representativas».
En el nuevo texto se recoge también la figura del defensor judicial, especialmente prevista para cierto tipo de situaciones, como aquella en que exista conflicto de intereses entre la figura de apoyo y la persona con discapacidad, o aquella en que exista imposibilidad coyuntural de que la figura de apoyo habitual lo ejerza.
Campo ha agradecido la aportación a la Ley por parte de colectivos como el Comité Español de Representantes de Personas con Discapacidad (CERMI) y espera que la tramitación parlamentaria de la Ley se haga de la manera más rápida posible y con el mayor consenso político.
De salir adelanta, esta norma supondrá una reforma en el Código Civil, la Ley de Enjuiciamiento Civil o la Ley del Notariado, entre otras.
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