Illness, disability, prodigality and support measures: regarding the STS of 18 september 2024 (STS 1143/2024)

This work is framed within the framework of Law 8/2021, reforming civil and procedural legislation to support people with disabilities in the exercise of their legal capacity, and its basic objective is to highlight, in light of the most recent jurisprudence, the clear prevalence that (from a strictly legal perspective) presents the determination of the support measure that should be adopted in each case over that related to the illness, disorder, disability, addiction... that is at the base of a disability situation. Likewise, and in accordance with the principles of the New York Convention of December 13, 2006 on the rights of people with disabilities (art. 12), among which stands out the respect for the maximum autonomy of the person in the exercise of their legal capacity, and art. 268 CC in the wording arising from the reform of Law 8/2021, the establishment of a representative guardianship is presented as a strictly exceptional legal regime, and therefore its adoption is not appropriate when the specific needs of the person are adequately covered by a merely care-based guardianship. The analysis has been carried out taking as a fundamental axis the doctrine contained in the recent STS of 18 September 2024, the scope of which extends far beyond the specific case under consideration, thus clarifying fundamental aspects of the reform of the CC by the aforementioned Law 8/2021.