General Considerations, Requirements and Relevant Aspects

I. Introduction

The figure of the trial or process of interdiction has as its object, the legal protection of a family member who cannot fend for itself, consequently, we can define it as a process through which a Sectional Family Judge, after having been alleged and proven the state of mental alienation of a person, deprives him/her of the disposition and administration of its assets.

It is a curiosity of the national regulations that, despite the fact that the competence to hear this type of process is maintained by the sectional family judges, it is not regulated in the Family Code, but in the Judicial Code, in its articles 1307 to 1324. This legal figure is extremely important to know since many times, our relatives unfortunately find themselves in certain situations or conditions in which it is necessary, due to issues of mental illness, loss of lucidity, or in general, it is present and plausible the state of mental alienation of a relative, consequently, it is unavoidable to require their guardianship or the suitable administration of their patrimony.

In a very typical interpretation of the writer, once a person is declared in a state of interdiction, they are denied or lose the quality of natural person before the national legal system, since they cannot exercise their rights of their own free will. and care, since these are delegated to a tutor or third person.

II. Legal Principle

For the Jurist and Treatise Writer, Doctor of French nationality, professor of Civil Law and History of Law at the University of Rennes and the University of Paris Marcel Planiol, the interdiction is what is defined as a sentence by which a civil court, after having verified the state of mental alienation of a person, deprives him/her of the administration of its assets. This sentence implies the opening of the guardianship of the subject to Interdiction or substitution.

III. Causes

The subject who is in a state of imbecility, dementia or deaf-mutism is incapable for which reason the person cannot read or write, therefore, it must be subject to interdiction.

From the foregoing it can be deduced that the causes of the interdiction are:

1. Imbecility, considered as the deprivation of intelligence that incapacitates the person to exercise their rights by themselves.
2. Dementia, progressive loss of cognitive functions due to brain damage or disorders.
3. When the person cannot express itself or make itself understood in writing.
4. And as we have mentioned, in general when any cause is present and that causes the state of mental alienation of a person.

IV. Generalities and Relevant Aspects of the Process.

This process can be promoted in accordance with the provisions of the Judicial Code in its article 1307 by:

• The spouse.
• By the relatives of the allegedly incapable person who acquire the right to succeed him/her abintestate or without a will.
• By the Public Ministry.

It is important to note that the sectional family judge will appoint a curator to the alleged injunction defendant, who is the person in charge of the care and management of all its assets, if it has any and who will be in charge of his care, however, for some decisions, this curator must request authorization from the same judge who assigned such functions.

If the INTERDICTION demand was made based on mental alienation, the judge will personally question the defendant, except in cases in which he is in a hospital or psychiatric ward, in which case it will be necessary to verify the state of insanity by means of a medical certification.

This process must be initiated or requested by a lawyer, who must submit a power of attorney accompanied by a written petition before a Sectional Family Judge, and once the lawsuit is filed and admitted, an edict is established in which all interested parties or those people, who may well be family members who believe they have the right to intervene in the process.

It is of particular importance to provide with the demand the necessary evidence that demonstrates that the person on whom the interdiction will fall upon complies with the medical and legal aspects to be declared in interdiction.

When the judge decrees the interdiction, he will designate a curator, who will be or replace the interdicted in the exercise of its rights of disposition of goods and care thereof, until there is no person or presents himself to request the custody of the incapable , or as we have mentioned, the injunction can also be revoked when it is shown that the interdicted person ideally recovered his mental faculties.