(No. 29) (Approved January 11, 1998) AN ACT

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1 (S.B. 178) (No. 29) (Approved January 11, 1998) AN ACT To amend Article 168 of the Puerto Rico Civil Code; add Articles 193A, 193B, 193C, 193D, 193E 193F to the Puerto Rico Civil Code, in order to incorporate drug addiction as a cause of disability; to authorize guardianship for the purpose of protecting drug-addicts and their possessions; enable guardians to give their consent for said persons to receive the treatment they need for their rehabilitation, with due protection of their constitutional rights. STATEMENT OF MOTIVES The purpose of every good government is to take measures and actions that will promote and ensure the welfare of the People. Citizens, as a general rule, take care of their own affairs, but there are always exceptions to the rule: those whose judgment is impaired to make decisions to the extent that they cannot adequately take care of themselves or their property, or other persons or the property of those persons. The purpose guardianship is to provide custody of the person and his/her property, or only the property, of those persons who are not subject to patria potestas, Article 167 of the Puerto Rico Civil Code. Our body of laws authorizes guardianship in circumstances such as dementia, insanity, infancy, profligacy and habitual intoxication. Guardianship offers assistance to these persons in order to furnish them with the juridical standing, through their guardians, that they need to perform juridical actions affecting their person, their property or the property of others adequately. It is the main obligation of

2 guardians to ensure the welfare of the persons in their care, and for such reason they usually post a bond before the Court to ensure the success of their actions. They must also submit a report at the end of their guardianship, whether the same is voluntary or involuntary. Drug addiction provokes circumstances that harm the affected person, other persons, and their property and the property of others. The addiction to controlled substances, whose possession or sale is prohibited by law without a medical prescription, also results in similar circumstances. This situation has remained inexplicably unattended. Persons who suffer from this condition desperately resort to improper actions with the sole purpose of obtaining narcotic substances, which lead them to squander their assets, thus affecting their personal welfare and wealth, in detriment to their heirs and creditors. In many cases, they resort to crime, harming persons and other people s property. To date, the Government has only resorted to penal measures to address the personal and social evil caused by drug addiction. Said measures have been insufficient. The Legislature deems that the civil code of laws, and particularly the guardianship system, can be of significant help to help and protect both drug addicts as well as the life and properties of third parties. The legislature believes that our civil code of laws, and particularly the institution of guardianship, can be of significant use in aiding and protecting drug addicts as well as the life and properties of third parties, since it is the intention of our body of laws to protect such persons. Such protection must include the remedy of the disability doctrine and the consent of the guardian so that person under guardianship can be submitted to an adequate rehabilitation treatment. The civil remedy provided herein may be initiated, in addition to the spouse and their forced heirs, by the prosecuting attorney appointed to the Superior sub-part of the Court of First Instance, by the Family Advocate and by

3 other relatives, if the spouse or his/her heirs are, in turn, either minors or incompetent. The use of the civil remedy, whether by the spouse, forced heirs or by the State, will necessarily entail a determination of the Court regarding who will be the guardian and that such guardian shall be bound to give his consent so that the person under guardianship can receive the necessary treatment to propitiate his/her rehabilitation, so that he/she may overcome drug addiction. Likewise, the court shall provide which of the public or private institutions should be the one in which the person under guardianship shall be admitted or must go to attend for treatment, should it be necessary. Unlike ordinary guardianship cases, it is provided that the guardian must submit an annual report. Furthermore, persons over twenty-one years of age may become guardians, provided they are not directly linked to the institution providing treatment, or to any person related to the guardian in the fourth degree of consanguinity or second of affinity, who, in turn, has done business with some of the public or private institutions, which provide rehabilitation treatment for the person under guardianship, whether through a work contract or by rendering services. A Register of Volunteer Guardians is hereby provided, to be in the custody and administered by the Department of Justice, in which private persons as well as public servants may register, provided they qualify and meet guardianship requirements. If the State is the promoter, the person subject to the incompetence procedure shall be entitled to a legal counsel and a medical expert to testify in his/her favor, at the expense of the State. No evidence that arises during the procedure may be used against the person that submits or is submitted to the incompetence procedure, in any other procedure, unless the incompetence

4 procedure is overruled and the State was not the promoter of the ordinary proceeding. Under no circumstance shall the finding of incompetence to govern the person and his/her property because of drug addiction be considered as a cause of unindictability for penal purposes. Our body of penal laws has not yielded the expected results regarding a reduction in the use of narcotics and controlled substances, drug trafficking and related crimes. Our democratic State under the law has the obligation to protect the People from crimes that stem from drug addiction and drug trafficking. This Legislature expects that by incorporating drug addiction to our legal code as a cause of total incompetence for purposes of full guardianship for drug addiction, including specific purposes in order to give consent for the rehabilitation of said persons, it will help to protect drug addicts as well as reduce drug trafficking, drug addiction and other crimes resulting therefrom. BE IT ENACTED BY THE LEGISLATURE OF PUERTO RICO: Section 1.- To amend Article 168 of the Puerto Rico Civil Code, to read as follows: Article Persons subject to guardianship.- The following are subject to guardianship:.. (5) Those who, upon firm and final judgment, have been declared drug addicts. Section 2.- To add Articles 193A, 193B, 193C, 193D, 193E and 193F to the Puerto Rico Civil Code so that it reads as follows: 193A.- Guardianship of drug-addicts - Definition, Drug-addiction is hereby defined as the physiological or psychological dependence on the consumption of controlled substances or drugs, whose possession or sale is

5 prohibited by law without a medical prescription, which creates in such person an alienation from reality which inhibits or impairs the capacity to safekeep his or her personal welfare, the safety of his property or both. Article 193 B.- Declaration of Incompetence; Obligations of the Guardian.- The judicial declaration of incompetence of a person by virtue of his/her drug addiction is needed in order to place the person, his/her property or both, under guardianship. Said declaration shall be petitioned through a suit in an ordinary proceeding. The Court, at the moment of issuing judgment, shall determine the degree of incompetence of the drug-addict, shall specify the acts prohibited to the incompetent person, and the powers to be performed by the guardian in his behalf. Article 193C.- Dispositive measures.- The Court shall order dispositive measures it deems necessary, which shall govern the person or the property of the drug addict until judgment is rendered. The guardian shall render a guardianship report annually. The Court may provide that the incompetent person be hospitalized or receives outpatient treatment in a private or public institution which the Court may deem suitable for rehabilitation. The Court shall conduct periodic review hearings to rigorously follow-up the progress of the incompetent person. Failure to obey the orders of the Court shall constitute civil contempt. It shall be the duty of the guardian to prove to the court, under oath, and under the penalty of losing the guardianship, that he/she submitted the incompetent person to a rehabilitation program. Along with the guardian, a Court expert shall testify whether or not rehabilitation was achieved and shall present adequate expert evidence to determine whether the rehabilitation was achieved, in order to terminate the incompetence.

6 The guardian may use the income of the person under guardianship from any public or private source for the payment of his/her treatment costs, whether the treatment is ambulatory or hospitalized. Article 193D.- Who may request the declaration.- The declaration of incompetence due to drug-addiction shall only be petitioned by the spouse and forced heirs, ascendants or siblings of the alleged incompetent person, and by exception, the prosecuting attorney assigned to the Superior sub-part of the Court of First Instance or the Family Advocate, on his own accord or by petition of a relative, when the spouse or heirs are minors or incapable. If the State is the promoter, the person subject to the incompetence procedure shall be entitled to the assistance of legal counsel and to the testimony of an expert in his behalf. Said expert shall not have any financial relationship or contract whatsoever, nor any employer-employee relationship with any entity devoted to drug rehabilitation, whether public or private. Under no circumstance, regardless of who initiated the procedure, shall the evidence obtained during this procedure, be used against the person submitted to the incompetence procedure in another procedure. Incompetence, as referred to herein, does not constitute unindictability for penal purposes. Article 193E.- Impugnation of acts.- Only those acts subsequent to the subpoena or summons of the drug addicted person shall be rescindable, if the same result in grave injury to the incompetent person s interests assets, or being. Article 193F.- Appointment of the guardian.- Guardianship of the drug-addict shall correspond, in the first instance to the persons listed in Article 186 of the Puerto Rico Civil Code, as amended.

7 Whenever two (2) or more persons appear as guardians, the Court shall designate one of them on the basis of the welfare of the incompetent person. If none of the corresponding persons are available or are willing to accept guardianship, the appointment shall be made from the Register of Volunteer Guardians, who shall be supervised and managed by the Department of the Family. Said register shall contain the names of private persons and public servants who wish to and are authorized to perform the duties of a guardian. As an additional requirement, the persons mentioned in the above paragraph, shall be required to be twenty-one years (21) of age or older, and shall not be linked directly with the institution rendering treatment, the physician or professional therapist, or with any person related to the guardian up to a fourth degree of consanguinity or second of affinity, who in turn has done business with any of the institutions, whether public or private, who provide rehabilitation treatment for the person under guardianship, whether by contract or the rendering of services. Section 3. - This Act shall take effect immediately after its approval.

8 July 20, 1999 Luis G. Hidalgo, Director of the Office of Legislative Services of the Legislature of Puerto Rico, hereby certifies to the Secretary of State that he has duly compared the English and Spanish texts of Act No. 29 (S.B. 178) of the 2nd Session of the 13th Legislature of Puerto Rico, entitled: AN ACT to amend Article 168 of the Puerto Rico Civil Code; add Articles 193A, 193B, 193C, 193D, 193E 193F to the Puerto Rico Civil Code, in order to incorporate drug addiction as a cause of disability; to authorize guardianship for the purpose of protecting drug-addicts and their possessions; enable guardians to give their consent for said persons to receive the treatment they need for their rehabilitation, with due protection of their constitutional rights, and finds the same are complete, true and correct versions of each other. Luis G. Hidalgo