Mecanismos tuitivos para el ejercicio de la capacidad jurídica por las personas con discapacidad en los sistemas italiano y español

The new understanding of disability and legal capacity has given rise to a new paradigm that represents a shift towards a more inclusive and equitable comprehension, seeking to transform attitudes and social structures to ensure that all people, regardless of their particular characteristics, can fully participate in society and enjoy their rights. The recognition of the full legal capacity of persons with disabilities aligns with this new paradigm and lays the foundation for the creation of protection mechanisms based on support for decision-making, abandoning the classic substitution of the person considered incapable of governing their own affairs. This doctoral thesis aims to determine how legal protection for people with disabilities is configured in relation to the respect for their legal capacity, through a study of support mechanisms for the exercise of legal capacity in the Italian and Spanish legal systems. The methodology includes a review of 299 doctrinal sources, a jurisprudential study of 184 judgments from International Courts and the National Courts of Italy and Spain, as well as a study of the civil and procedural law of both countries. The results obtained show that, in the Italian legal system, despite the implementation of some regulatory changes, the classic incapacitating institutes for persons with disabilities persist, although with a more restricted application by the Courts. Meanwhile, in the Spanish case, in 2021 a regulatory reform was implemented that constitutes a significant milestone in the evolution of legislation, marking a before and after in the conception and approach to disability. The conclusions highlight the need to implement changes in the Italian legal system that allow a response to disability based on the recognition of its full legal capacity and respect for its will, desires and preferences.