Modo probatorio de la capacidad de los adultos mayores al otorgar poder en sede notarial.

Abstract

The present study is oriented to the probative mode of the capacity of the elderly when granting a power of attorney in the notary office, aiming in this case to present said model. Currently the notary in Ecuador does not have any model that allows him to faithfully determine whether or not the older adult requesting the granting of a power of attorney is capable of entering into this contract and may have been led to do so with deception or be acting without total lucidity, bringing with him any legal consequence to the notary or notary who grants it. For such purposes, data was collected using theoretical methods, I feel the synthetic and descriptive analytical methods, and as an empirical method the documentary, compared legal analysis, taking as a reference the Spanish, Mexican and Colombian regulatory framework, in addition to conducting interviews with notaries and lawyers on the subject. The results made it possible to show that old age is not synonymous with disability and that it must be proven in order to declare it an injunction, canceling acts that could be held during the individual's disability, also declaring those that are held later invalid. The powers also end by interdiction of the principal, although it has been granted when he had full capacity, said this the study concludes with the approach to the National Assembly of a proposal for the reform of the Notarial Law where a medical examination must be carried out to determine the capacity of the elderly, with the notary intervening asking questions as evidence, granting power of attorney only if the result is favorable.