Incoerências e absurdos do Estatuto da Pessoa com Deficiência: a capacidade civil e o seu exercício na perspectiva daqueles que apresentam autonomia e intelecção prejudicadas

Abstract

This work intends to analyse, after the promulgation of the Law 13.146/2015 (Statute of Persons with Disabilities) and from the perspective of real equality, the impacts of the legal incapacity extinction and the restrictions imposed to substituted decision-making (mainly curatorship) for people with disabilities, mostly those who have severe cognitive issues and reduced autonomy. Through this study, the aim is also to demonstrate the incoherence and inefficiency of the statute’s rules about legal capacity and its exercise, especially given the protective purpose of those matters as determined originally by the Civil Code of 2002. In order to do that, it was made a review of the existing literature on the teme, as well as a research, in the Brazilian precedents, of cases involving people with disabilities and curatorship. Furthermore, a comparative analysis with the subject of school inclusion of those people was proposed, which allowed to demonstrate that the edition and acceptance of the rules studied in this work, in our society, are due to the idealized and simplistic conception that equality before the law is enough to guarantee the inclusion and participation of people with disabilities in the community. In this context, it was possible to verify the unsustainability of the current provisions of Law 13.146/2015 regarding legal capacity and its exercise, especially curatorship.