Diretiva antecipada de curatela: validade da declaração de vontade no anteprojeto de lei para revisão e atualização do Código Civil de 2002

Abstract

This article analyzes the Advance Directive of Guardianship (DAC), provided for in the 2024 Civil Code Reform Bill, from the perspective of will autonomy, human dignity, and protection of the vulnerable. The research investigates whether the DAC, as an advance expression of the will of a fully capable person regarding the choice of their future guardian and the conditions of guardianship, is compatible with the current legal system and constitutional principles. To this end, it examines the concept and foundations of Advance Directives of Will (DAV), highlighting the presumed will, the living will, and the guardianship directive, as well as the structure of guardianship from the perspective of capacity and legitimacy. It also analyzes the legal nature of the DAC, distinguishing it from contracts, classifying it as a unilateral, highly personal, preventive, and receptive legal transaction regarding its effects, whose effectiveness depends on the occurrence of civil incapacity and judicial approval. It is concluded that the DAC represents a normative advance in the strengthening of private autonomy, and should be regulated to guarantee legal certainty and respect for decisions made by individuals in full enjoyment of their civil capacity, without disregarding the protective function of the State.