Beyond the capacity to understand and wish. An analysis of the Italian institution of support administration and a proposal for reform of the Spanish protection system

Inmaculada Vivas Tesón:
Beyond the capacity to understand and wish. An analysis of the Italian institution of support administration and a proposal for reform of the Spanish protection system

Review by: Ángeles Martín Rodríguez

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Review:

The publication we have reviewed has been awarded First Prize by the State Observatory for Disability and published by the Foundation for the Promotion and Support of Persons with Disabilities (FUTUEX), on paper and digitally on the portal of the Observatory (http://www.observatoriodeladiscapacidad.es/informacion/documentos/
18181
).

This work is the result of research carried out at the “Ugo Natoli” Department ofPrivate Law of the University of Pisa (Italy) by Inmaculada VIVAS TESON, tenured lecturer in Civil Law at the University of Seville and it is about one particular Italian institution, the amministrazione di sostegno. The entire study is abundant in rich bibliographical information and first-hand interpretation of case law, which is undoubtedly conveyed throughout its pages.

Following trasnposition by the Spanish legal system of the United Nations Convention on the Rights of Persons with Disabilities, adopted in New York on the 13th December 2006, the author’s aim is to assess whether our domestic Law has adopted the principles and values of this International Treaty. She contemplates whether the protection mechanisms we have in place (particularly, legal incapacitation and the protection system) respond to the social model of disability found in Article 12 of the UN Convention and whether it can be moulded to all situations of debility in which dependent persons may find themselves.

In search of plausible alternatives put forward by other countries modernising their legislation seeking to respond to new social challenges and which could eventually be adopted by our legal system, Vivas Tesón focuses on the study of the Italian institution of protection, the “amministrazione di sostegno” (which could be translated as “support administration”). This institution is aimed at protecting the individual more than their property, which, in the opinion of the author, Spanish legislators must pay special attention to given that this institution is in perfect harmony with the UN Convention (despite outdating it), particularly with recognition in its Preamble (letter n) that “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices” and with its “in dubio pro capacitas” guiding principles and “minimal intervention“.

In Chapter 1, Dra. Vivas Tesón deals with the study of the judicial history and the ratio legis of Italian Law 6/2004, from the 6th January, which introduced into articles 404 to 413 of the Codice Civile, together with total (“interdizione”) or partial (“inabilitazione”) legal incapacitation, the figure of l’amministrazione di sostegno or support administration. Having looked at other legal experiences in Europe, particularly the French, Austrian, German, English and lastly, Spanish ones, she discusses the content of the Italian law. Chapter II is devoted to the study of the support administration, analysing, inter alia, its terminology, distinctive characteristics and practical problems of delimitation between the support administration and judicial incapacitation.

In the third and final Chapter the author covers the legal system of the Italian protective institution.

Below, Vivas Tesón makes ten observations de lege ferenda regarding one, absolutely necessary legislative reform today in the Spanish system of protection for dependent persons or, as the author indicates, those who are not “disabled”, but “differently abled”.

Without a shadow of doubt, this monograph and its distinguished recognition by the State Observatory for Disability contributes to confirming the solid research career of Dr. Inmaculada Vivas Tesón.

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Technical Data

Title: "Beyond the capacity to understand and wish. An analysis of the Italian institution of support administration and a proposal for reform of the Spanish protection system"
Book author: Inmaculada Vivas Tesón
Review by: Ángeles Martín Rodríguez
Number:
Pages: "199-200"
URL: http://www.comunitania.com/angeles-martin-rodriguez-beyond-the-capacity-to-understand-and-wish-an-analysis-of-the-italian-institution-of-support-administration-and-a-proposal-for-reform-of-the-spanish-protection-system/
DOI: http://dx.doi.org/10.5944/comunitania.4.12
Magazine: Comunitania, International Journal of Social Work and Social Sciences