Las medidas de apoyo y su publicidad registral en interés de las personas con discapacidad

Abstract

Inclusive disability policy, promoted by the New York Convention and by the recent 2021 reform of our civil legislation, proves difficult to transpose into the registral sphere. Perhaps this is because Civil Law is a branch of law centred on the protection of the person as an individual, whereas registral legislation is instead directed toward the protection of supra‑individual interests, such as those relating to transactional security. Thus, Civil Law is concerned with protecting the person against the problem of their own disability, while the Civil Registry or the Land Registry view such disability as a problem for others, with registral publicity understood as a duty rather than as a right. Yet this registral system, formerly designed as a bulwark of legal certainty, ought now to be reorganised, from an inclusive perspective, as an instrument aimed at ensuring — more than transactional security — the effectiveness of support in the interest of the person with disability, without undermining their privacy, with registral publicity of their need for support understood as a right and not as a duty. All of this compels a rethinking of the registral model. The paradigm shift introduced by the 2021 reform in the field of Civil Law, by giving primacy to the will of the person with disability under the principle of the greatest possible respect for their private autonomy, should have entailed that same shift in approach regarding the publicity of support measures through the Civil Registry, under a correlating principle of optional rather than mandatory registration, as occurs in the Land Registry, where such publicity — now removed from the real folio of the property and relegated exclusively to a special auxiliary book, under a principle of optional registration — must, however, for reasons that remain unclear, paradoxically remain reserved.