https://doi.org/10.37955/cs.v8i2.352

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eISSN: 2600-5743

Declaration of Interdiction by a

Notary Public of a person with

mental and psychological

disabilities

Declaratoria de Interdicción por Medio de Notario

Público de una persona con discapacidad mental y

Psicológica

José Pablo Abreu Fernández

Abogado, Instituto Superior Tecnológico Espíritu Santo con condición de

universitario, Guayaquil, Ecuador y Universidad Bolivariana del Ecuador, Guayaquil.

Ecuador, jpabreu@tes.edu.ec, jpabreu1993@gmail.com, https://orcid.org/0000-0002-

8737-3832

Samuel Morales Castro

PhD. Universidad Bolivariana del Ecuador, Universidad Bolivariana del Ecuador,

Guayaquil. Ecuador, smoralesc@ube.edu.ec, https://orcid.org/0000-0003-1753-2516

Gabriel Alejandro Santamaría Coloma

Abogado Universidad Bolivariana del Ecuador, Guayaquil – Ecuador.

gabrielalejandro3496@hotmail.com, https://orcid.org/0009-0007-2478-6756

ABSTRACT

The result of the degree work prior to obtaining the title of Master in

Procedural Law was presented, with the topic: "Declaration of

Interdiction by Notary Public of a person with mental and

psychological disabilities". The purpose of the same was to carry out a

legal analysis of the legal regulations in Ecuador regarding the

declaration of interdiction and the appointment of a guardian for

persons with intellectual disabilities. This contributed to solve the

research problem referred to: How to favor the legal procedure to

safeguard the rights of persons with mental and psychological

disabilities, through the appointment of a guardian, involving the

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participation of a notary public? The research had a qualitative,

documentary and explanatory approach.

RESUMEN

Se presentó el resultado del trabajo de titulación previo a la obtención

del título de Magister en Derecho Procesal, con el tema: “Declaratoria

de Interdicción por Medio de Notario Público de una persona con

discapacidad mental y Psicológica”. El propósito de la misma fue

realizar un análisis jurídico sobre la normativa legal en el Ecuador en

cuanto a la declaratoria de interdicción y el nombramiento de curador

para personas con discapacidad intelectual. De esta manera se

contribuyó a resolver el problema de investigación referido a: ¿Cómo

favorecer en el procedimiento legal de salvaguardar los derechos de las

personas con discapacidad mental y psicológica, a través del

nombramiento de un curador, involucrando la participación de un

notario público?. La investigación tuvo un enfoque cualitativo, de tipo

documental y explicativa.

Keywords / Palabras clave

Legal guardian, Interdiction, Mental and Psychological Disability.

Tutor legal, Interdicción, Discapacidad Mental, Psicológica

Introduction

A long time ago, in many societies it was considered that the person

who had some kind of disability was an entity whose existence did not

deserve to be lived, and rather, it was seen as an economic-social

obligation, at family level, which even led to their death, thus

infanticide arose in many places.

In this research we will analyse the rights of people with intellectual

disabilities, given its own nature, and being a very sensitive subject,

which every day has acquired great significance and has a prolific

treatment by the Inter-American Commission of Human Rights.

Likewise, it has its protection in the rights guaranteed in a series of

conventions and treaties, of which Ecuador is a signatory, for all this,

it is in the Republic of Ecuador a quite disputed topic.

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In the same vein, it can be seen that persons considered intellectually

disabled, due to their own development, legal protection, and their

own legal capacity, must have a guardian, who make decisions on their

behalf and in their representation, as they belong to a group subject to

fundamental rights. Among these rights are life, food, freedom,

transport and access to social recognition processes, guaranteed in the

Constitution of the Republic of Ecuador, in Chapter Three, Rights of

persons and groups of priority attention, specifically in Art. 35

(Constitution of the Republic of Ecuador, 2008).

The declaration of interdiction and appointment of a guardian are

significant preventive actions. These measures facilitate the

performance of necessary legal acts for persons with intellectual

disabilities, such as the subscription of contracts for the acquisition of

goods and services, among others; hence the importance of the

proposal of this article, which suggests an amendment to the Notarial

Law in force in Ecuador.

An examination of the current Notarial Law reveals the lack of a clear

definition and specific treatment for the processes of declaration of

interdiction and appointment of a guardian for persons with

disabilities. This level of detail is present in cases of persons deprived

of their liberty, as reflected in Article 18, paragraph 25 of the Notarial

Act itself, which states the following:

25.- To process the request for the declaration of interdiction to

administer the assets of a person declared a convicted person by an

enforceable criminal judgement; for this purpose, the enforceable

judgement shall be attached. In the act that establishes the

interdiction, a guardian shall be appointed. (Ecuador, National

Assembly, 2023).

Given the current situation, it is essential that the Ecuadorian legal

system, specifically in the Notarial Law, incorporates clear provisions

that regulate the rights of persons with disabilities. This includes, in

particular, the development of interdiction processes and the

appointment of guardians under the authority of a notary public.

In the face of this problem, it is crucial to examine the relationship

between the declaration of interdiction and the appointment of a

guardian in cases of persons with disabilities, especially intellectual

disabilities.

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In Ecuador, Article 6 of the Organic Law on Disabilities establishes

that a person with a disability is a person who:

Article 6.- Person with disability. - For the purposes of this Law, a

person with disability is considered to be any person who, as a

consequence of one or more physical, mental, intellectual or sensory

impairments, regardless of the cause that originated it, has a

permanently restricted biological, psychological and associative

capacity to exercise one or more essential activities of daily life, in the

proportion established by the Regulations. (Ecuador, Asamblea

Nacional, 2019).

Given the importance of what is stated in Article 6 of the

aforementioned law, the notary assumes the responsibility of

guaranteeing the legal security of those who require these actions. The

notary public assumes a fundamental role in the Declaration of

Interdiction, as he/she is the competent person in charge of carrying

out the legal process in an impartial and transparent manner,

converting the appointment of a guardian into an act of public faith.

The notary public acts as a guarantor of the rights and protection of

the person with a disability, ensuring that the procedures established

by law are complied with. Furthermore, the notary public has the

responsibility to assess the mental and psychological capacity of the

person in question, based on medical and psychological evidence and

reliable testimony. He/she must act with sensitivity and empathy

towards the person with a disability, always respecting his/her dignity

and autonomy.

All of the above leads to the formulation of the following scientific

problem: How to favour the legal procedure of safeguarding the rights

of persons with mental and psychological disabilities through the

appointment of a guardian, involving the participation of a notary

public?

From this perspective, the general objective of the research is: to carry

out an exhaustive legal analysis of the internal legal system in Ecuador

with regard to the declaration of interdiction and the appointment of

a guardian for persons with intellectual disabilities (mental and

psychological), with the aim of proposing a new paragraph to Article

18 of the current Notarial Law. Since its inception, the United Nations

has played a crucial role in recognising and promoting the rights of

persons with disabilities within the international legal framework.

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Armed confrontations in the bloody Second World War left a large

number of persons with disabilities as a result, and this, therefore,

represented a problem for the countries involved, as they represented

a burden, such persons, and of course, there was no effective policy on

the issue of disability, regulating this issue.

Against this background, the United Nations first specifically

addressed the issue of disability in 1950 at the sixth session of the

Social Commission. At this session, two reports on physical disabilities

were considered and the work of the International Programme for the

Welfare of the Blind was reviewed. As a result of these efforts, the

Economic and Social Council created a number of specific

rehabilitation and treatment programmes for people with physical and

visual disabilities (Saulle, 1981).

In the late 1960s, a reorientation in the policies followed until then

began to take place. However, despite the growing interest in

disability, it was still conceived exclusively as part of the welfare and

sometimes social policy of states, with no apparent link to the

protection of fundamental rights and freedoms. This explains the

absence of any mention of persons with disabilities in the

International Covenants on Human Rights of 1966 (Humanium, 1966)

and in the Universal Declaration of Human Rights of 1948 (United

Nations (UN), 1948).

In the 1970s, people with disabilities began to be recognised as rights

holders. In 1971, the General Assembly approved through Resolution

No. 2856, the Declaration of the Rights of Mentally Retarded Persons,

which was a milestone, being the first international instrument of the

United Nations that recognised the rights of persons with intellectual

disabilities (Organisation of American States (OAS), 1971).

Likewise, already in 1975, the General Assembly of the UN, approved

in the same way, through the Resolution 3447 dated December 9th,

1975, the Declaration of the Rights of the Disabled, which, extended

the recognition of the rights guaranteed to all the beings with some

disability (United Nations Educational, Scientific and Cultural

Organization (UNESCO), 1975). However, both Declarations did not

have the character of being binding on States, and therefore lacked the

force of compliance.

In the same vein, the UN determined that the year 1981 would be called

the "International Year of Disabled Persons", the theme of which

would be "full participation", with the aim of:

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§ assist the disabled in their physical and psychological adaptation to

society;

§ to promote all national and international efforts to provide the

disabled with appropriate assistance, care, training and guidance,

to make available to them opportunities for suitable work and to

ensure their full integration into society;

§ encourage study and research projects aimed at facilitating the

practical participation of disabled persons in everyday life;

§ educate and inform the public about the right of disabled persons to

participate in and contribute to various aspects of economic, social

and political life; and

§ to promote effective measures for the prevention of disability and

for the rehabilitation of disabled persons (United Nations

Educational, Scientific and Cultural Organisation (UNESCO),

1981).

Consequently, the United Nations General Assembly at its thirty-

seventh session, by Resolution 37/52 of 3 December 1982, adopted the

World Programme of Action concerning Disabled Persons, whose

purpose is: "to promote effective measures for the prevention of

disability, rehabilitation and the realization of the goals of 'full

participation' of disabled persons in social life and development and of

'equality'" (United Nations (UN), 1982).

Also, the General Assembly itself established the so-called United

Nations World Decade for Disabled Persons (1983-1992), with the aim

of holding an International Conference related to this important issue

of disability, but this objective could not be achieved (United Nations

(UN), 1982).

Similarly, a series of Declarations followed, such as the 1989 Tallinn

Guidelines for the Development of Human Resources in the Field of

Disability (United Nations, 1989), the 1991 Principles for the

Protection of Persons with Mental Illness and the Improvement of

Mental Health Care (Organisation of American States (OAS), 1991). In

1992, at the conclusion of the aforementioned Decade, the UN

declared that 3 December of each year would be designated as the

International Day of Persons with Disabilities (United Nations (UN),

1992).

Then, by means of the Resolution adopted by the General Assembly at

its Forty-eighth session on 20 December 1993, the Standard Rules on

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the Equalization of Opportunities for Persons with Disabilities were

adopted, with the aim of:

(a) Emphasize that all measures in the field of disability presuppose

sufficient knowledge and experience of the special conditions and

needs of persons with disabilities;

(b) Emphasize that the process by which every aspect of the

organization of society is made available to all is a fundamental

objective of socio-economic development;

including, where appropriate, the active promotion of economic and

technical cooperation;

(d) Provide models for the political decision-making process necessary

for the achievement of equality of opportunity, taking into account the

existence of a wide range of economic and technical levels, as well as

the fact that the process must reflect a thorough understanding of the

cultural context in which it takes place and the key role that persons

with disabilities play in that process;

(e) Propose the establishment of national mechanisms for close

collaboration between States, bodies of the United Nations system,

other intergovernmental bodies and organizations of persons with

disabilities;

f) Propose an effective mechanism for monitoring the process by which

States seek to achieve equality of opportunity for persons with

disabilities. (United Nations (UN), 1993).

These Standard Rules are the most relevant international instrument

in terms of the international legal regulatory framework on the issue

of disability, although they are not binding on the signatory countries.

Despite the efforts made, the main criticism of the work of the United

Nations was the lack of a GLOBAL TREATY to promote and protect

the rights of persons with disabilities. It was clear that, without such a

legally binding document, the exercise, respect and, above all,

enforcement of the rights of persons with disabilities would be

significantly hampered.

After extensive expert study, the General Assembly adopted the

Convention on the Rights of Persons with Disabilities and its Optional

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Protocol at its 61st session on 13 December 2006 (United Nations

(UN), 2006), which entered into force on 3 May 2008.

This treaty is considered a cornerstone in the recognition of equal

rights and opportunities for persons with disabilities.

The main objective of this Convention is to ensure that persons with

disabilities fully enjoy all human rights and fundamental freedoms.

The content of the Convention covers different aspects of the lives of

persons with disabilities, such as equality and non-discrimination,

accessibility, inclusion, participation in political and public life, access

to justice, health, education and employment, among others.

The Optional Protocol to the Convention was adopted on the same day

and allows individuals and groups to submit complaints to the

Committee on the Rights of Persons with Disabilities, a body

established to monitor the implementation of the Convention. This

Protocol also gives the Committee the power to conduct enquiries in

specific cases of grave violations of the human rights of persons with

disabilities.

The Convention establishes implementation and monitoring

mechanisms to ensure compliance. These include the Committee on

the Rights of Persons with Disabilities, a body composed of

independent experts to review periodic reports submitted by States

parties and issue recommendations to improve the situation of

persons with disabilities in each country.

In addition, the Convention establishes the obligation of States parties

to adopt legislative, administrative and other measures to guarantee

the rights recognised in this treaty, as it has the character of being

binding on all signatory States.

Persons with specific needs:

In order to begin to analyse the problems arising from this research, it

is vitally important to know what is meant by people with disabilities.

For this, the definition of the Pan American Health Organization is

assumed, when referring to the Convention on the Rights of Persons

with Disabilities (CRPD), which, in its article 1, defines persons with

disabilities as "those who have long-term physical, mental, intellectual

or sensory impairments which, in interaction with various barriers,

may hinder their full and effective participation in society on an equal

basis with others. (Pan American Health Organization (PAHO), 2024).

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Classification of the different types of intellectual disabilities.

Intellectual disability is defined as:

A condition in which an individual experiences significant limitations

in intellectual functioning and basic adaptive skills. These limitations

affect the ability to learn, understand new information, reason and

cope with the daily demands of life independently. (Universidad

Internacional de La Rioja (UNIR), 2024).

Consequently, this definition details the different types of intellectual

disability that exist, according to the different medical studies carried

out:

- Mild intellectual disability: characterised by challenges in academic

learning and social adaptation. People with this type of disability can

generally learn basic academic skills, but need additional support to

develop social skills and face challenges in areas such as reading,

writing and mathematics. It is characterised by people with IQ

between 50 and 70, with cognitive delay and a slight impairment of the

sensorimotor field. They are able to take part in the education system,

receive training and even have professional activity, but their learning

takes much longer than that of other people.

Examples of specific difficulties would be:

§ Difficulties in reading and writing: they may need specific

strategies to improve reading comprehension and express

themselves in writing.

§ Limited mathematical skills: they require a practical and visual

approach to understand mathematical concepts.

§ Organisational problems: difficulties in organising tasks and

following complex instructions (Universidad Internacional de

La Rioja (UNIR), 2024).

Moderate Intellectual Disability: At this level, challenges are more

pronounced and individuals may need support with strategies to

address special educational needs such as daily living. This level, which

is below 50 in IQ, creates a constant need for supervision in both

education and work, although, with much therapy, they may have

some degree of autonomy. Some specific characteristics include:

§ Need for support in daily tasks: assistance with daily activities such

as dressing, grooming and food preparation.

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§ Limited language development: difficulties in expressing and

understanding language.

§ Limited social skills: problems in establishing meaningful social

relationships. (International University of La Rioja (UNIR), 2024).

Severe Intellectual Disability: Involves significant challenges in all

areas of development. It is when the IQ is between 20 and 35, making

those who suffer from it in need of constant supervision, as it almost

always presents with neurological damage. This causes the individual

to have reduced skills, little or no reading and numerical

comprehension. Here, people usually communicate with holophrases.

Legally they are considered unable to make their own decisions.

People with this condition may require constant support and

supervision in almost all daily activities, for example:

Need for constant care: complete dependence for daily tasks and

personal needs.

§ Communication limitations: limited or no language, using non-

verbal forms of communication.

§ Require structured and supervised environments: need a highly

structured environment to function effectively (Universidad

Internacional de La Rioja (UNIR), 2024).

Profound intellectual disability: At this level the intellectual disability

is extreme, with significant challenges in all areas of development. It

is one of the most infrequent, and is the one of the different types of

intellectual disability most feared by parents, as those who suffer from

it have an IQ capacity of less than 20. This implies permanent care and

the survival rate is very low, as it is often accompanied by neurological

problems, among others. Their motor skills are limited and their

communicative ability is quite low or non-existent.

People with profound intellectual disabilities may have severe

difficulties in communication and mobility and require constant and

specialised care.

§ Total dependence: they need complete assistance for all daily

activities.

§ Limited or absent communication: extreme difficulties in

communicating verbally or not communicating verbally.

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§ Special medical needs: face additional medical conditions that

require constant attention. (Universidad Internacional de La Rioja

(UNIR), 2024).

Understanding these levels of intellectual disability is fundamental to

adapt support and legal strategies to the individual needs of each

person, with the aim of protecting their rights, in the different bodies

of law.

Notarial Law and the Protection of the Rights of Persons with

Disabilities.

Notarial law plays a key role in the protection of the rights of people

with disabilities. As impartial and objective intermediaries, notaries

are responsible for ensuring the authenticity, security and legality of

all legal transactions. In the case of persons with disabilities, this

means ensuring that their rights are respected and adequately

protected.

The notary, through his or her function as a notary public, can ensure

the legal capacity of persons with disabilities, i.e. their ability to

exercise rights and obligations. In this respect, it is essential that the

notary carries out a thorough analysis of the capacity of the person

with a disability, avoiding stereotypes and prejudices, taking into

account all individual circumstances, to ensure that his or her

autonomy and free exercise of will is not infringed.

Once the capacity of the person with a disability has been assessed, the

notary can take measures to ensure that his or her rights are protected.

This can include the appointment of support or legal representatives,

the adoption of appropriate safeguards and the recommendation of

accessibility and adaptation measures in legal transactions, as is

precisely our proposal or practical contribution in this research.

Notarial law has various instruments for guaranteeing the rights of

persons with disabilities. One of the most important of these is the

granting of powers of attorney, whereby a person with a disability can

appoint a representative to act on his or her behalf. These powers of

attorney can include the management of legal, financial and personal

care matters, but at the moment the Notarial Act essentially does not

provide for the particular case in which a petition for a declaration of

interdiction can be processed to administer the assets of a person

declared mentally incompetent, which is exactly the contribution we

want to make to the law on the subject.

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The notary has an important responsibility in promoting the inclusion

and equality of people with disabilities. In addition to fulfilling his

legal functions, the notary has the capacity to influence society and the

construction of inclusive environments. The notary can contribute to

the fight against discrimination and stigmatisation of persons with

disabilities by promoting inclusive practices in his or her daily work.

This involves providing equal treatment to all persons, adapting

notarial procedures according to individual needs and raising

awareness and sensitisation about the rights of persons with

disabilities.

It is essential for the notary to keep up-to-date and trained in

disability-related aspects in order to be able to provide a quality service

that respects human rights. Collaboration with organisations and

entities specialised in disability can also be of great help in broadening

knowledge and improving the notary's inclusive approach.

The State of Interdiction and Guardianship.

According to the Royal Academy of the Spanish Language (RAE), the

term Interdiction is referred to as follows: "Procedure of a civil nature

aimed at declaring that a certain person does not have the intellectual

or volitional capacities to carry out his or her exercise capacity". (Pan-

Hispanic Dictionary of Legal Spanish, 2024).

On the other hand, the Civil Code itself, in Art. 367, refers to

guardianships and curatorships, stating the following:

Art. 367: guardianships and curatorships or curatorships, are

positions imposed on certain persons, in favour of those who cannot

govern themselves, or competently administer their affairs, and who

are not under the power of a father or mother, who can give them due

protection.

The persons who exercise these positions are called guardians or

curators, and generally guardians (Ecuador, Congreso Nacional,

2022).

Interdiction is a legal procedure that aims to protect and safeguard the

rights of persons who, due to various circumstances, have lost their

capacity to make decisions or exercise their rights autonomously.

Interdiction is a legal status in which a person is declared incapable of

exercising the full enjoyment of his or her civil rights on his or her own.

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In order for a person to be declared interdicted, it is necessary to follow

a procedure established by law.

The first step is the filing of an application by a family member, spouse

or a person interested in the protection of the rights of the person in

question, which must meet the requirements contained in the COGEP,

accompanied by a certificate from a Psychiatrist or neurologist on the

state of the alleged interdicted person, issued under oath, among

others to prove his or her mental incapacity.

This application must be submitted to a competent judge and contain

solid arguments demonstrating the need to declare the person

interdicted. In addition to the filing of the application, all parties

involved must be notified, an exhaustive medical and psychological

evaluation of the person must be carried out, and a hearing must be

held in which the mental capacity of the person will be evaluated and

the arguments of all interested parties will be heard, Once all the

evidence demonstrating the person's incapacity has been gathered and

once the only hearing has been held in accordance with the summary

procedure (COGEP), the final interdiction is declared and a definitive

guardian is appointed (Chimbo, 2020). (Chimbo, 2020)

It is important to highlight that interdiction does not imply a total loss

of rights for the person declared interdicted, but rather seeks to protect

his or her interests and guarantee that his or her decisions are taken in

a responsible manner by his or her guardian or curator.

Although it is a legal mechanism designed to protect the most

vulnerable persons, the application of interdiction can present

limitations and challenges. These may include the difficulty in

accurately and objectively determining the degree of incapacity of a

person, conflicts of interest between the parties involved, lack of

adequate resources and support for the guardian or conservator, and

the potential for abuse or neglect by the appointed guardian or

conservator.

It is essential that improvements be made to the interdiction and

guardianship system to ensure the effectiveness and protection of the

rights of persons declared interdicted.

Types of interdiction:

In this section we share the criteria of Gustavo Antonio Chaves Chimbo

(2020), which refers that interdiction can be judicial or legal:

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Judicial interdiction: This is the interdiction resulting from a serious

habitual intellectual defect. Its name derives from the fact that the

intervention of the judge is necessary to pronounce it. It determines an

incapacity for protection.

Legal interdiction: This is the interdiction resulting from a prison

sentence. Its name derives from the fact that, once the sentence has

been imposed, without the need for any other requirement, the

offender is interdicted by virtue of law. It determines an incapacity for

social defence (p. 18).

The effects of interdiction are as follows:

Among the main effects caused by the sentence of interdiction are:

1. The interdicted person is deprived of the government of his person,

he is affected by a full, general and uniform incapacity, consequently,

he is subject to guardianship.

2. The guardian must see to it that the interdicted person recovers his

or her capacity; for this purpose, the products of the assets must be

used.

3. The judge, with knowledge of the case, shall decide whether the

incapacitated person is to be cared for at home or elsewhere, but shall

not intervene if the curator is the father or mother of the incapacitated

person.

4. He is deprived of the exercise of parental authority over his

unemancipated minor children. (Chimbo, 2020).

Materials and Methods

The research had a qualitative, documentary-type approach which,

according to Bernal, Cesar (2010) "consists of an analysis of written

information on a given topic, with the purpose of establishing

relationships, differences, stages, positions or current state of

knowledge regarding the subject under study" (p. 111). (p. 111). In this

case, an analysis is made of Article 18 of the Notarial Act in force and

its numerals. It is also of an explanatory type since this type of research

"seeks that the conclusions lead to the formulation or contrast of laws

or scientific principles" (p. 115), inasmuch as once the analysis of the

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article of reference and the current numerals has been carried out, the

inclusion of a new numeral is proposed which gives notaries the power

to declare an intellectually disabled person interdicted and at the same

time appoint a guardian in the same legal act.

Theoretical methods such as analysis and synthesis, inductive-

deductive and historical-logical methods were used to guide the

research process on the declaration of interdiction by a notary public

for mentally and psychologically disabled persons. In addition, the

method of legal systematisation is used in the design of the proposed

new paragraph of Article 18 of the current Notarial Act, which enables

its structure and functioning to be conceived. Document analysis was

used as a research technique, which is a "technique based on

bibliographic files whose purpose is to analyse printed material"

(Bernal, 2010, p. 194), in this research the fundamental

documentation was based on the legal law in force in Ecuador.

Similarly, interviews were conducted with notaries and lawyers whose

contributions were essential for the analysis of the proposal for the

new section of the current law under analysis in this research.

The study population consisted of three notaries and three lawyers

from the city of Guayaquil, Ecuador, who were interviewed with 10

questions in order to analyse the process of applying Article 18 of the

current Notarial Law under investigation.

Results

This analysis corroborates how legal practice in Ecuador affects

persons with intellectual disabilities and highlights the opinion of

specialists on the possibility of granting new powers to notaries to

solve this problem.

When inquiring about the Current Regulations, which constituted

question 1, the interviewees agree that the Ecuadorian legal system,

although it guarantees the protection of the rights of persons with

disabilities, especially intellectual disabilities, highlights the need to

help lighten the process.

In relation to question 2 regarding the efficiency of the legal

procedures, most of the interviewees also agree that the current

procedures for declaring interdiction are complicated and lengthy,

which overloads the courts and makes it difficult to quickly access the

necessary legal protection. They suggest that these functions could be

taken over by notaries for greater efficiency.

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At the same time, question 3 was asked about the Declaration of

Survival, where again the majority are of the opinion that the purpose

of the declaration of survival by notaries is to verify the existence of the

person. They point out that this process, although regulated, does not

directly address disability, which does not represent a significant

loophole in the law.

Also, asked about the importance of the Declaration of Interdiction

(Question 4), all respondents stated that the declaration of interdiction

is seen as crucial to protect persons with intellectual disabilities by

facilitating the appointment of a guardian. Respondents believe that

allowing notaries to make such declarations would significantly

improve the process and the well-being of these persons.

Another aspect on which the interview revolved was the Criteria for

Determining Disability (Question 5), where the following were

predominant in their responses: certifications from the Ministry of

Public Health, CONADIS and specialised medical expertise.

Due to the relevance of the topic, the analogy with the Representation

of Persons Deprived of Liberty was asked (Question 6), where a

possible parallelism between the legal representation of persons

deprived of liberty and those with intellectual disabilities was

appreciated, suggesting that notaries could play a similar role in both

cases.

On the basis of what is represented in the research, administrative

facilities were surveyed (Question 7), with the majority finding that the

incorporation of the power to declare interdiction to notaries would

simplify and speed up procedures, reducing the burden on the judicial

system and facilitating access to rights and benefits for users.

At the same time, questions were asked about the New Powers

(Question 8) where they emphasised the importance of granting

notaries the power to declare interdiction and appoint curators,

considering that this would speed up voluntary jurisdiction processes.

In addition, they questioned the requirements for the Declaration of

Interdiction (Question 9), where they listed essential requirements

such as the certification of survival, certifications from the Ministry of

Health and CONADIS, medical expertise, and testimonies of suitable

witnesses.

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Finally, a question was asked about preferences in the Appointment of

Curator (Question 10) at this point the majority suggested that the

curator should preferably be the spouse or a close relative to guarantee

the rights of the represented person, although the possibility of

appointing a person with legal training is also considered if the context

requires it.

From the studies carried out throughout this research, and from

verifying the existence of the scientific problem, it becomes essential

to propose a solution to it, through the following new proposal. To this

end, it is intended to contribute with a new numeral to Article 18 of the

Notarial Law, which gives notaries the power to declare an

intellectually disabled person interdicted and at the same time appoint

a guardian in the same legal act.

§ The proposal would then read as follows:

§ Reform Title XXII OF THE CIVIL CODE:

§ Articles 480, 481, 482, 484, 486, 487, 488.

§ In Article 480, replace judicial interdiction by notarial

interdiction.

§ In Article 482 replace the expression "The judge" by "The notary".

In Article 484 replace "The judge shall choose" by "The notary shall

appoint", and in addition state the following: The parents may not

exercise this office without the consent of the other spouse. The

children may not exercise this office without the consent of the

majority of their siblings. In case of the third order of succession Art.

1053. Siblings may not exercise this office without the consent of the

majority of their siblings, for which purpose they shall go to a

Mediation Centre, where the person or persons best suited to exercise

this office shall be appointed.

In Article 486, replace the expression "after the sentence of

interdiction" by "after the act of interdiction".

In Article 487 replace the expression "judicial authorisation" by

"notarial authorisation".

In Article 488 replace the expression and with judicial authorisation

by and with notarial authorisation.

Amendment of Article 18 of the Notarial Act

Add a new paragraph to the articles: Art.18, paragraph 39

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To process the petition for the declaration of interdiction to administer

the assets of a person declared mentally incompetent; for this purpose,

a medical history and a certificate issued by a psychiatrist from the

Institute of Neurosciences or the Social Security Institute shall be

attached;

In the act establishing the interdiction, a guardian shall be appointed.

The legal guardian has the duty to act in a diligent and responsible

manner, making decisions for the welfare and safety of the ward. The

responsibilities of the legal guardian include managing the ward's

assets and resources, as well as making decisions in medical, legal and

financial matters.

The notary public has the responsibility to assess the mental and

psychological capacity of the person in question, based on reliable

medical and psychological evidence and testimony. The notary public

will request medical and psychological evidence to support the

declaration of incapacity, as well as testimonies from family members,

caregivers or health professionals that can support such a request.

The notary public is also responsible for supervising the management

of the legal guardian, ensuring that he/she fulfils his/her duties and

makes decisions in the best interests of the ward. The legal guardian

must be accountable to the notary public and fulfil the obligations laid

down by law.

In addition, the notary public may be consulted in the event of a

conflict or dispute between the legal guardian and other relatives or

interested parties. The notary public must act with sensitivity and

empathy towards the person with disabilities, always respecting their

dignity and autonomy.

Conclusions

The epistemic and legal analysis of the current law in Ecuador on the

legal procedures of persons with disabilities made it possible to solve

the scientific problem that led to the research and to fulfil the General

Objective by carrying out an exhaustive legal analysis of the internal

legal system in Ecuador, regarding the declaration of interdiction and

the appointment of a guardian for persons with intellectual disabilities

(mental and psychological), with the purpose of proposing a new

numeral to Article 18 of the current Notarial Law.

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The proposal of a new numeral to Article 18 of the current Notarial

Law may help to streamline the current process, reduce paperwork

and thus benefit persons with disabilities.

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