A curatela no contexto das pessoas com Transtorno do Desenvolvimento Intelectual Grave ou Profundo

Abstract

This work proposes studying the treatment of guardianship of persons with disabilities in the Brazilian legal system, aiming at verifying whether it provides sufficient protection for the rights of people with Severe or Profound Disorder of Intellectual Development who need to rely exclusively on that institute to practice all the acts concerning civil life. The research problem is due to the significant reduction in the extent of guardianship, which is now allowed only in extraordinary situations and restricted to the patrimonial and business spheres, according to article 85 of the Statute of Persons with Disabilities. The analysis evaluates article 12 of the Convention on the Rights of Persons with Disabilities, which determines the recognition of legal capacity to those persons and requests States to guarantee its exercise through providing the necessary support and adopting measures that are proportionate and appropriate to the person's circumstances. Furthermore, it considers, in theoretical and doctrinal aspects, legal ideas that apply to the protection of the rights of persons with disabilities, such as material equality, the prohibition of insufficient protection, dignity, proportionality, interdependence and autonomy. In order to make this study viable, it was used the deductive method, since the information collected was analyzed through logical reasoning and deduction, reaching new conceptions based on other previous concepts through syllogism. Besides, the research is exploratory, because it seeks to delve deeper into the topic, in order to improve ideas and create hypotheses. As for the techniques used, the research is bibliographic, once it analyzed materials on the topic – such as books, dissertations and periodical publications – and it’s also documentary, for it used documents without analytical treatment – such as laws, international conventions and judicial decisions. Therefore, it was concluded that, in addition to not complying with the provisions of article 12 of the Convention on the Rights of Persons with Disabilities, the discipline of guardianship in Brazilian law, by restricting its extent to patrimonial and business acts, violates the prohibition of insufficient protection, as it does not provide means of exercise and enforcement for existencial rights, especially in cases of severe intellectual disability. Moreover, the possibility of applying concentrated conventionality control was verified, as well as the need to change the rules regarding guardianship to allow, with legal certainty, its modulation according to the person’s situation and to meet their needs and abilities considered individually.