ARGENTINA Trends and Developments Contributed by: Herberto Robinson and Micaela Cagnoli, McEWAN
Estudio McEwan Esmeralda 1061 PB C1007ABM Buenos Aires Argentina Tel: +54 11 7078 1112 Fax: +54 11 7078 1112
Email: info@estudiomcewan.com.ar Web: www.estudiomcewan.com.ar
Restrictions On Capacity: Complexities and Challenges at a Global Level The issues surrounding estates – and the capac - ity to make decisions regarding the estates – have garnered attention from people in many countries. This is primarily due to the increas - ing life expectancy of the human population worldwide. More importantly, various mental changes are observable but do not lead to sig - nificant alterations in a person’s mental status. These subtle changes can pose challenges for lawyers and notaries when it comes to determin - ing whether an individual has full awareness of their actions. Planning is crucial when individuals who may have a disability are involved in decision-making. Additionally, family law professionals face chal - lenges in establishing consistent rules to assess the validity of decisions made by individuals with limited capacity – or, when necessary, by their relatives – in order to safeguard their personal and financial interests. This is where the empha - sis should be placed. The notion of disability as such has undergone changes over time, and it is thus conceived of as “a permanent or prolonged functional altera - tion – whether this is a motor, sensory or mental
alteration – that, when weighed with age and social environment, implies considerable disad - vantages hindering family, social, educational or work integration”. According to the United Nations Convention on the Rights of Persons with Disabilities, persons with disabilities include those who have long- term physical, mental, intellectual or sensory impairments that – in interaction with various barriers – may hinder their full and effective par - ticipation in society on an equal basis with oth - ers (United Nations, 2006). There are situations in which a person may not be classified as having a disability, yet they experience some level of change or decline in their intellectual capacity. This can affect their decision-making, especially regarding their property and assets, in a manner similar to the challenges faced by elderly adults. In Argentina, a person is presumed to have capacity; this is a general principle. Any restric - tions on capacity will be exceptional, will be prescribed either by statute or by a judge, and will inure to the benefit of subjects themselves (Chapter 2 of the Civil and Commercial Code of the Nation (CCCN)).
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