MEXICO Law and Practice Contributed by: Javier Díaz de León, Monica Ramos and Martín Cortina, Díaz de León Abogados
8.3 Planning for Incapacity Individuals with mental incapacity are protected under mechanisms of family support depending on the spe - cific needs of the disabled person. The mechanisms of family support secure that close family members help the disabled person to express their own wishes on daily life decisions, following the Supreme Court’s decision. The disabled person may directly appoint the persons providing “family assistance” before a notary public or the Family Court, depending on the level of disability. Otherwise, the “family assistance persons” must be appointed by the Family Court attending to the request made by the disabled person’s relatives. 8.4 Elder Law Families and individuals use the following varying financial measures to prepare for longer lives, ensur - ing continued provision for housing, medical, personal and general living expenses, and preventing difficul - ties in getting access to funds for said expenses. • Living trusts – Trust assets may be irrevocably contributed to a trust, identified and regulated in the trust agreement for the benefit of designated family beneficiaries, with rights and distributions structured according to specified age thresholds. The trust permits an independent trustee, whether in Mexico or overseas, to manage the assets required by the trust beneficiary during the ben - eficiary’s entire life regardless of age, physical or mental condition. The appointment of a protector secures the execution of protective measures set forth in the trust agreement for the benefit of family members. • Pension funds – Mexican family members may also enjoy periodic payments under pension plans cre - ated by their closely held family-owned company, or, in some circumstances, by qualified federal or local government retirement plans. The level of periodic payments depends on the contributions made into the applicable plan by the family-owned company, or the individual. • Co - ownership of bank accounts – The Mexican financial system allows two persons to make contributions to and have distribution powers over a single bank account. This measure facilitates the funding of a bank account by a family member, while family ascendants, for example, may get
medical support, education and therapy, and similar concepts. 8.2 Appointment of a Guardian Guardian (Tutor) The appointment of a guardian ( tutor ) must be author - ised by the Family Courts in Mexico, subject to com - pliance with the following statutory process: • filing of appointment request describing facts and legal merits for the Family Court’s analysis; • submission of medical expert reports on disabled persons; • hearing with the guardian and the incapacitated person at the Family Court; • judgment of interdiction and appointment of guard - ian by the Family Court; and • registration of the guardian appointment with the competent Civil Registry. Note that Mexico’s Supreme Court of Justice stat - ed that Mexico’s traditional interdiction system was unconstitutional for violating the legal capacity of persons with disabilities. The Court ruled that disa - bled persons must have rights to take personal life decisions and access to the Mexican judicial justice without legal guardians. The Supreme Court expressly argued that Mexico’s interdiction system violated the UN Convention on the Rights of Persons with Dis - abilities. As a result, disabled persons are now rec - ognised as independent individuals with full powers to decide on different personal life decisions such as place of residence, lifestyle, schedules, routines, and access to the Mexican judicial system to assert their own legal rights. Conservator (Curador) Mexican individuals under legal guardianship must have a conservator ( curador ) approved by the Fam - ily Court. The conservator does not manage personal assets. Their role is strictly to oversee the guardian’s actions and defend the incapacitated person’s inter - ests against the guardian. The roles of guardian and conservator may not be held by the same person. The conservator must assert the legal rights of disabled persons when the guardian has opposite interests and request that the Family Court appoint a new guardian when applicable.
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