Application for the Administration of the Property of an Incapable Person
The right of persons with disabilities to own property is protected by the constitutional right to property (Article 23). This right is held by every natural or legal person regardless of religion, age, gender, or any other factor. Therefore, it is understood that a person with an intellectual disability is also a holder of such a right. What differentiates the case of persons with intellectual disabilities is precisely the lack of legal capacity. That is, the capacity to transact and enter into agreements for their own benefit. In other words, they are unable to make decisions that serve their best interests. Consequently, what is stated in this article should not be approached as limitations on the right to property, but rather as protection of that right for such persons.
The welfare state is therefore obliged to protect the property of persons with disabilities, so that they are not subject to exploitation and so that their property remains and is used or disposed of for the coverage of their own needs. The competent authorities must inform one another of cases involving incapable persons lacking legal capacity, particularly the Land Registry, in order to prevent the disposal of their immovable property without first ensuring that such action is beneficial to them.
A person who lacks judgment and will to manage their property or conduct their affairs, due, among other reasons, to mental illness or mental disorder, may be declared an "incapable person" in accordance with the provisions of the Administration of the Property of Incapable Persons Law of 1996 (Law 23(I)/1996).
An application to declare any person as incapable is submitted to the Court within whose jurisdiction the person resides, by any interested party. This includes the spouse, father, mother, and descendants of the incapable person, the Director of Mental Health Services and/or Social Welfare Services, as well as any person who satisfies the Court that they have an interest in the property of the incapable person.
If the Court is satisfied that the person in respect of whom the application is made is incapable within the meaning of the Law, an order is issued prohibiting that person from performing any acts that produce legal consequences.
It is emphasized that the Court, within the framework of the relevant legislation, has an inquisitorial character. This means that if, based on the evidence presented, even in the absence of objection, the Court has doubts as to the incapacity, it will not issue the requested order.
Furthermore, the Court has general and specific powers to issue any orders relating to the overall administration of the property and affairs of the incapable person.
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