Elderly people in residential homes. Procedural regularisation of situations of irregular stay.

Abstract

In cases of involuntary admission of people to residences or social care centres, judicial authorisation is required. The growing concern of both Prosecutors and Family Judges over the last few years regarding the way in which elderly people have been or are being admitted to residences has brought to light many situations of irregularity, with numerous cases having been detected in which said authorisation was lacking. The measures to resolve these irregular situations involve, stricto sensu, the immediate release of the person admitted or the application for habeas corpus proceedings for the same purpose. However, the application of these remedies sometimes results in the creation of new problems, as when they are released, they are left totally helpless as they cannot find family members who can - or want to - take care of them, or they cannot immediately access home care services. The procedural route that has been chosen to avoid this situation of irregular stay and lack of protection in the event of release, currently involves initiating a support procedure for persons with disabilities, regulated in articles 756 and following and concordant articles of the LEC, requesting or agreeing ex officio at the same time, as a precautionary measure, emergency authorisation for the person's admission. This paper analyses the suitability of such a solution, while reflecting on the possibility of applying other measures more in line with the procedural institutions.