AUTONOMY and LEGAL CAPACITY OF the PEOPLE in Spain

1. Vth EUROPEAN CONGRESS GERONTOLOGY July 2-5, 2003/Barcelona/Spain Research Group Coordinator: Dra. M. Echezarreta mtechezarret@uma.es. Researches: Physicians: Lcdo. B. Álvarez, Dr. R. Gómez, Lcdo. J. A. López, Lcdo. J.M.Marín Politólogo:Dr. R. Durán Ecomist: Dr. J.C. Martínez Jurists: Dra. R. Caro, Dra. M. Echezarreta, Dr. A.Márquez, Dra. Rosa Quesada, Dr. Á. Rodríguez, Dra. B.Sillero Migration of the elderly within the Community Legal definition of “European Retirement Place” The aging, international migration and the construction of Europe are keys for the political and legal construction of the theoretical concept “European retirement place”.The European places for Retirement have a multidisciplinary theoretical profile which justifies and gives legal base to a phenomenon needed of answers, due to its social, health-care, political, economical and legal impact. An example: the town of Mijas (Málaga- España). Sources the authors of the Municipal Register 2001, the Foreign Residents Register (General Police Department, 2001) and Mijas Inhabitants Register (31st October, 2002). Whole population 51,987. 36.4 % of foreigners.  65 years-old population 7,508 – 14.4%  65 years-old foreign population 4,811 – 64.1%  65 years-old Spanish population 2,697 - 35.9 %  65 years-old EU population 4,231 – 56.4% (in comparison to the total of  65 years-old inhabitants). 87.9% (in comparison to the total of  65 years-old foreign inhabitants). WORKING PLACES Faculty of Law (University of Málaga and Extremadura), Geriatric Área of the Hospital Carlos Haya (Málaga) and Medical Área of the Málaga Town Hall Abbreviations: TEC Treaty of the European Community TEU Treaty of the European Union CFR Charter of Fundamental Rights (UE) CC Código Civil (Spanish Civil Code) LEC Ley de Enjuiciamiento Civil (Spanish Civil Procedural Law) • de CIVIL LAW FUNDAMENTAL RIGHTS... • AUTONOMY and LEGAL CAPACITY OF the PEOPLE in Spain • Legal standing:Aptitude to be to title of rights and obligations and, in general, of legal relations. • Legal capacity:Aptitude of the person to make acts with legal effectiveness. • The European Union still does not have competition to regulate the civil rights of the person nor the rights of family the capacity of the people is always presumed, whereas its incapacity, as soon as exception, must be proven of way evident and complete and judicially declared. • Spanish law • Mechanics of protection of the interests of incapable • 1.The Incapacitación • Art. 199 CC: "Nobody can be declared incapable but by judicial sentence by virtue of the causes established in the Law" • Art. 200 CC: "The diseases or persistent deficiencies of physical or psychic character Are incapacitación causes that prevent the person to govern by itself". • 2. Institutions of protection • Art. 215 CC: "The guard and protection of the person and goods or only of the person or the goods of the minors or disabled people, will be made, in the cases that come, by means of : 1º tutela, 2º curatela, 3º defending judicial ". • 3. New features of the project of reform: a) Presumed the incapable one will be able to promote its incapacitación. b) Any person with the legal capacity sufficient, in forecast of being incapacitated judicially in the future, will be able in notarial public document to adopt as disposition relative to its own person or goods, including the designation of tutor. c) For the tutor appointment would prefer: 1º. To the had the charge of designated one by the own one, according to the paragraph second of article 223. • THE CONFLICT OF LAWS • Capacity of the foreign elderly in Spain a “European Retirement Place” • Premises:There are fifteen jurisdictions and 15 legal systems ruling the civil autonomy and capacity of the persons of the European Union. • AimsTo define when the judicial authorities are competent to know about a matter and what law is applicable to the issue when several legal systems are involved. • 1. Spanish Jurisdiction Competence • When the alleged incapable will have their usual residence in Spain (art. 22.3 LOPJ). • Spanish courts will be also competent to take provisional or guarantee measures for the people or properties in Spain and must be enforced in Spain (22.5 of LOPJ). • 2. Applicable Law (art.9.6 CC) • The Spanish court will enforce the national law of the alleged incapable to his/her incapability and to his/her protective institutions. - - • The formalities of constitution will be enforced the Spanish Law, and in the same way will be enforced the protection and educational measures of those being in Spain, having non well-defined bonds to other legal systems. • Provisional or urgent measures of protection will be enforced by the law of the usual residence. • 3. Acknowledgement of foreign judicial decisions • Announced in contentious proceedings: with lack of bilateral agreement it will be enforced the exequatur proceeding (art. 954 and followings, LEC). • Announced in proceedings of volunteer jurisdiction: acknowledgement of public acts (arts.144 and 323 LEC) • 4. News on the agreement of the Conference of The Hague for the protection of adults, 2000 not in force: • Competence of the authorities of the place where is the adult’s usual residence. • Enforcement of the internal laws of the competent court. • Take into consideration other court’s competence and laws with some conditions. • Autonomy in the will of the adult to choose preventively and in written the competent court and the applicable law among those more connected to the life of the person. • Automatic acknowledgement of the measures taken by a contracting State in any other contracting State, being planned a few exceptions. • Cooperation system among the Central Authorities of every State member. .. Of the Elderly • Non-discrimination based on any ground such as (..) disability, age (..). Art. 13 TEC and Art. 21 CFR • Rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life. Art. 25 CFR • Right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community Art. 26 CFR • Entitlement to social security benefits and social services providing protection in cases such as (..) dependency or old age Art 34 CFR • Right of access to preventive health care and the right to benefit from medical treatment Art. 35 CFRF .. Of European Citizens • Freedom of movement and of Residence. Art. 18 TEC and Art. 45 CFR • Non discrimination on ground of nationality. Art. 12 TEC and Art. 21 CFR • Respect for cultural, religious and linguistic diversity. • Art. 6.3 TEU and Art 22 CFR • Right to vote and to stand as a candidate at elections to the • European Parliament. Art 39 CFR • Right to vote and to stand as a candidate at municipal elections. • Art 40 CFR INTRACOMMUNITY COORDINATION OF SOCIAL SERVICES Pensions, health and social services of theIntracommunitarian Immigrants Elders (IIE) in Spain like European Place of Retirement. 1 º Pensions, health and social services transcend the concepts of national solidarity entering those of community solidarity and European citizenship. « Every person who resides and moves legally inside the Union has right to the benefits of social security and to the social advantages in accordance with the Community law and the legislations and national practices » (art. 34.3 CDFUE). 2 º Nowadays the coordination in Social Security matter for the intracommunitarian relations is established, with many limitations, in n º. 1408/71 and 574/72 CEE Regulations. It includes neither to all the community citizens nor to the whole social protection. 3 º There exists an offer of universalization, simplification and coordination in the only frame, before 2006, the political ones of social protection of the members states in relation to the following blocks: pensions, social incorporation and fight against the poverty, sanitary attention and to the elder persons, systems of social security and how to encourage the persons to work (Communication of the European Commission of May 28, 2003). 4 º To political level, already there have been extended all the Europeans who move to other States (Ministers' Council of Social Affairs of December 3, 2002) the general right to the sanitary attention. Nowadays only this right exists for urgent cases, except certain groups, which they can accede to any medical necessary attention, even not being urgent, of free form (pensioners, jobseekers in another Member state, victims of workings accidents or occupational diseases, etc.). 5 º Project of sanitary european card: a) there was born in the European Council of Barcelona in March, 2002 b) symbolic value of European identity c) purpose of documentary improvement and of management d) it will replace the forms in paper established in the 1408/71 and 574/72 Regulations: "E-111", "E-128", "E-119", "E-110" ...; e) it will constitute an electronic support of information related to the medical record, f) it will be implemented from June, 2004.