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How to request the disqualification of an elderly parent (and differences with the disqualification)

The law provides for protection procedures, such as disqualification, for all those who, for various reasons, are no longer able to independently provide for their needs and interests, or at least not completely.
The elderly can often fall into this category of people, when with advancing age and pathologies they lose the capacity for discernment necessary to always act autonomously.
Moments of lack of clarity, confusion and memory loss occur.
The more frequent these episodes are, the more the concern of family members grows, as they try to protect their loved ones and protect their economic and non-pecuniary interests.
When the subject still has partial autonomy, however, it is unthinkable to take it away from him.
Instead, we must respect his possibilities and support him where necessary.
This is precisely the function of incapacitation which, despite the somewhat difficult term, is lighter than other measures, especially interdiction.
So let's see how to request the disqualification of an elderly parent, when and what the differences are with the disqualification.
What is disqualification and differences with disqualification Disqualification is a protection procedure aimed at people who are unable on their own (and not in a way convenient for them) to make decisions on acts of extraordinary administration.
Incapacitation, in fact, does not take away the autonomy of the subject, who can carry out all extraordinary acts alone, but he is supported by a curator for extraordinary ones, such as: Real estate sales; donations of property or of large value; purchase and sale of movable property of considerable value; acceptance and renunciation of inheritance.
Be careful, however: the curator does not replace the subject in carrying out these acts, but supports him in respect of his will to ensure that the decision taken matches his interests.
In any case, it is the judge who evaluates the conditions and capabilities of the subject, also allowing him to perform some extraordinary acts determined independently where possible.
On the contrary, the ban is a much more drastic measure, aimed at subjects whose incapacity is total.
In these cases, a guardian is appointed who completely replaces the person represented in both extraordinary and ordinary administrative acts.
The notable difference between interdiction and disqualification is clearly expressed in the regulation on informed consent for healthcare treatments.
The guardian expresses consent on behalf of the prohibited person, taking into account his wishes when possible.
The disabled person, however, expresses his consent personally and autonomously.
Incapacitation, in fact, can only be requested when the incapacity is partial, the parent is still able to manage his affairs but no longer has sufficient awareness for more important acts, which can lead to a squandering of assets inconsistent with his own interests and needs.
read also Interdiction of an elderly parent, when is it possible and what is it for? How to request the incapacitation of an elderly parent Children can request the incapacitation of their parents, but they are not the only subjects entitled to take this action.
Incapacitation can also be requested by the following people: The subject himself; the spouse or stable partner; relatives up to the 4th degree (parents, children, siblings, grandparents, grandchildren, great-grandparents, great-grandchildren and uncles); relatives within the second degree (including parents-in-law, brothers-in-law and abiatic grandchildren of the spouse); the public prosecutor.
The procedure is relatively simple, a lawyer must be appointed to present the appeal at the court of the parent's actual residence or domicile, accompanying the application with the reasons and a statement of the facts useful for an initial evaluation.
The application can be rejected already at this stage or proceed with the process towards the trial, with the setting of a hearing in which the following must appear: the elderly parent, the children who presented the appeal and the other subjects named in the application.
read also Can elderly parents be left alone? After the examination by the potentially incapacitated person, the judge can order urgent and temporary incapacitation where necessary.
Regardless, the investigations follow by listening to the people cited by the applicants and the checks requested by the judge.
If the disqualification is confirmed, the court appoints the curator, with priority among those closest to the subject, therefore: Non-separated spouse; adult children; parents; persons designated by the parent's will.
In the case of an elderly parent, it is therefore very likely that the guardian is one of the children, also depending on their abilities and possibly the will of the disabled person.
The curatorship assignment lasts a maximum of 10 years, but can be modified earlier due to the revocation of the disqualification (when the conditions are lacking) or the lack of suitability of the curator.
The incapacitation measure, as well as the decisions of the curator, can in fact always be challenged with an appeal even by the incapacitated person himself.
The revocation of the disqualification can be requested by all legitimized subjects, therefore also by the person directly involved.
Likewise, if the incapacitation is not recognized but the children believe it is necessary, they can contest the sentence.
read also Elderly and non-self-sufficient parents, are their children obliged to assist them?

Author: A.W.M.

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