Disability and legal capacity: the end of interdiction

Disability and legal capacity: persons with a mental, cognitive or intellectual disability have full legal capacity and a system of supports, without interdiction. What happens when a partner or a relative of legal age has a mental, cognitive or intellectual disability? Colombia’s Constitutional Court, in Judgment C-022 of 2021 of February 4, 2021, with Justice Cristina Pardo Schlesinger as reporting judge, upheld Law 1996 of 2019: the person’s capacity is presumed, supports are provided, and interdiction no longer exists. The judgment does not deal with companies or mention specific diagnoses; this article is based solely on its text.

What the Court decided

A citizen challenged Law 1996 of 2019, the regime for the exercise of legal capacity by adults with disabilities, arguing that it should have been enacted as a statutory law (ley estatutaria) under articles 14, 152 and 153 of the Constitution, not as an ordinary law. The Court upheld the law on that ground: it concluded that the law does not affect the essential core of the right to legal personality, since it removes barriers such as interdiction and replaces them with a system of supports that allows persons with disabilities to make decisions according to their will and preferences.

The rule: full capacity and the end of interdiction

According to the Court, the most relevant changes brought by Law 1996 are five: it eliminates absolute legal incapacity on grounds of mental disability, leaving only prepubescent minors as absolutely incapable; it repeals the regime of guardianship and interdiction for persons with a mental, cognitive or intellectual disability; it presumes the capacity to hold and to exercise rights of all persons with disabilities; it creates two support mechanisms, support agreements and the judicial award of supports; and it regulates advance directives.

Article 6 of the law sums it up: “In no case may the existence of a disability be grounds for restricting a person’s capacity to exercise rights”.

Before: article 1504 of the Civil Code deemed persons with a mental disability absolutely incapable; they had to act through a representative, the guardian, appointed in interdiction proceedings.
Now: article 53 of the law prohibits starting interdiction or disqualification proceedings, or requesting an interdiction judgment for any public or private procedure. Proceedings pending when the law was enacted were suspended, under article 55.
Independent acts: adults with disabilities have the right to perform legal acts independently. That capacity is presumed and the need for reasonable accommodations does not rebut it, under article 8.

Supports and their safeguards

What they are (article 3): forms of assistance to facilitate the exercise of legal capacity: in communication, in understanding legal acts and their consequences, and in expressing will and preferences.
Primacy of will (article 4): supports must respond to the person’s will and preferences, including the right to make mistakes. Only if, after exhausting reasonable accommodations, the person’s will cannot be established unequivocally is the best interpretation of will used, based on the person’s life history and prior statements.
Safeguards (article 5): necessity, that is, only if the person requests them or their will cannot be established; correspondence with the person’s circumstances; defined duration; and impartiality, free of undue influence through fear, aggression, threat, deceit or manipulation.

The mechanisms provided by the law

Support agreement (articles 15 to 20): the person designates those who will assist them in one or more acts. It is recorded in a public deed before a notary or before an out-of-court conciliator and lasts at most five years. If an agreement is in force, using it is a requirement of validity; not using it results in relative nullity, under article 19, without obliging the person to follow the supporter’s view. The person may end it unilaterally.
Advance directive (articles 21 to 31): an advance expression of will on health, financial or personal matters. It is signed by public deed or conciliation record. It may include a perpetual-will clause and may be amended, replaced or revoked at any time.
Judicial award of supports (articles 32 to 43): proceedings before the family judge with an assessment of supports. The person initiates them, in voluntary jurisdiction. Exceptionally, another person may initiate them, for the exclusive benefit of the holder, when the holder is absolutely unable to express their will by any means and that inability entails a violation or threat to their rights by a third party, under article 38. The judgment delimits the acts and the supports; the judge may not rule on acts outside the proceedings.

The support persons

Who may act as one (articles 44 and 45): a natural person of legal age or a legal entity. Anyone with a pending lawsuit against the holder or a conflict of interest with them is disqualified.
Duties (article 46): to be guided by the holder’s will and preferences, act with diligence, honesty and good faith, maintain trust and confidentiality, and report circumstances that call for modifying or ending the support.
Representation (article 48): only with an express mandate from the holder or, where supports have been awarded by a court, with the judge’s authorization when the holder is absolutely unable to express their will and the act reflects the best interpretation of that will.
Liability and registration (articles 50 and 51): the supporter is individually liable for breaching the law or the agreement; they are not liable for the holder’s damages if they acted in accordance with the holder’s will. Acts concerning registrable property must carry a note that they were performed with supports.
Persons already under interdiction (articles 6, paragraph, and 56): family judges must review their cases to decide whether they require an award of supports; they acquire full legal capacity once the review judgment becomes final.

An example: a shareholder with a cognitive disability

Hypothetical case with illustrative figures, applying only the general rules of Law 1996 as described in the judgment, which does not refer to companies. Hernán, of legal age, is a shareholder of Comercial Delta S.A.S. and has a cognitive disability that makes it hard for him to understand complex transactions. His daughter Paula wants to help him.

Can he be declared under interdiction? No. The law prohibits starting interdiction proceedings, and disability cannot be grounds for restricting his capacity to exercise rights.
Can he decide on his own, for example, to sell his shares? Yes: his capacity to perform legal acts independently is presumed, with any reasonable accommodations he needs.
If he wants Paula’s help: they can enter into a support agreement before a notary or conciliator, for specific acts and for up to five years. Paula could not represent him without an express mandate.
If he wants to leave instructions for the future: he can sign an advance directive on financial matters, by public deed or conciliation record.
If one day he could not express his will by any means: a relative with a legitimate interest could request the judicial award of supports. The judge would define the acts and supports; to represent him, Paula would need judicial authorization.
If Paula had a pending lawsuit against him: she would be disqualified as a support person.

Fidelis Advisories’ recommendations

Fidelis Advisories’ own criteria, going beyond the text of the judgment:

Do not require interdiction: do not ask for interdiction judgments as a requirement for procedures; check which support mechanism, if any, backs the person.
Request the support documents: if someone acts with supports, ask for the deed of the support agreement, the advance directive or the award judgment, and review their scope and validity.
Plan ahead: partners and managers may consider an advance directive or a support agreement while they can still express their will.
Respect the person’s will: document that the holder understood and decided, with any reasonable accommodations required.
Specialized advice: consult a lawyer before applying these rules to a specific company or to the person’s estate.
Check the source and currency: the judgment dates from 2021; confirm the official text with the Court’s registry and any later amendments to the law.

Consolidated opinion

What happens when an adult has a mental, cognitive or intellectual disability? Under Law 1996 of 2019, which the Court upheld on the statutory-law ground, the person is neither deemed incapable nor placed under interdiction: their capacity to hold and exercise rights is presumed, and they may rely, if needed, on supports, whether a support agreement, an advance directive or a judicial award, which must respect their will and preferences. In the example, Hernán keeps deciding about his shares, with his daughter’s support if he formalizes it. The judgment does not analyze companies or specific diagnoses and dates from February 4, 2021.

This article is for information purposes only and does not constitute legal advice. Contact us about your specific case.