ARGENTINA Trends and Developments Contributed by: Herberto Robinson and Micaela Cagnoli, McEWAN
Restrictions may apply to certain simple acts or specific legal actions, limiting what is considered necessary for an individual for a certain period. To address this, a judge may appoint support personnel or caregivers to help convey the wish - es of the restricted person. Some of the circumstances bringing about dis - ability may be either inherent to the person, self- inflicted, or from birth. Some can develop over time as a person ages – for example, neurode - generative diseases. External factors, such as addictions, may cause others. How can a person in such a state plan their estate? Is that planning treated as valid? Or, on the contrary, is it likely to be invalidated? Legal scholars have no consensus on this mat - ter, and positions and decisions are sometimes inconsistent in comparative law. Some specific aspects are analysed here. Reduction of capacity over time Global life expectancy has been steadily increas - ing, as follows. • In Argentina, men have an average life expec - tancy of 73 years, whereas women live to an average age of 79. • In Spain, men live an average of 70 years, whereas women have a significantly longer life expectancy of 86 years. • In Mexico, men reach an average age of 72 years, whereas women live six years longer (reaching an average age of 78 years). • Overall, the world averages are slightly lower – with men living to about 70 years and women to about 75 years. The increase in life expectancy does not pre - vent some neurodegenerative diseases from appearing during adulthood. Neurodegenerative
diseases are disorders that affect the brain and nervous system, causing progressive and irre - versible deterioration, even to the extent of neu- ronal death. These disorders can affect memory, mobility and cognitive function, thus taking their toll on the life quality of those who suffer from them by causing the progressive loss of men - tal and/or physical faculties, and even lead to death. Progressive neurodegeneration can lead to sig - nificant disabilities, as it results in limited func - tions and an increasing inability to manage envi - ronmental demands, which often require varying degrees of external support and assistance. When people begin to detect a deterioration of this type, they often take proactive steps to secure their wishes for the future, entering into agreements that reflect their intentions for times when they can no longer express them. In light of these challenges, the most effective solution is to seek legal tools that enable indi - viduals to plan for their later years, prepare for their succession, and proactively distribute their assets. This involves assessing their belongings and ensuring that each heir is fairly compensat - ed. Several options (such as testamentary trusts, trusts for inheritance purposes, agreements on future inheritance, advance directives, or wills) have been analysed in previous iterations of this Chambers guide, which is worth returning to. Elderly people as vulnerable testators What happens when a person disposes of their assets, such as by drafting a will, while their mental capacity is uncertain? In Argentina, a will can be drafted in handwritten form (in the testa - tor’s own handwriting) or by public instrument before a notary. When creating a will through a public deed, the notary must verify the testator’s capacity, confirm their condition, and ensure
24
CHAMBERS.COM
Powered by FlippingBook