A curatela da pessoa com deficiência psíquica/intelectual e a prática de atos existenciais: o necessário olhar além da intangibilidade proibitiva abstrata

Abstract

The present dissertation investigates the reformulation of the disability institute, after the International Convention on the Rights of Persons with Disabilities and its regulation at the national level by the Brazilian Law for the Inclusion of Persons with Disabilities. The general objective is to understand to what extent it is possible to apply, in the light of civil-constitutional law, the curatorship to existential acts practiced by people with mental/intellectual disabilities, whereas the specific objectives, on the other hand, are: (a) to demonstrate the trajectory and dimensions of private autonomy and relevance of the qualification process of existential and patrimonial acts for the purpose of legal protection; (b) discuss the autonomy and capacity of people with disabilities, as well as the current existing instruments to limit their exercise; (c) enumerate the reasons that lead to the possibility of reviewing the curatorship institute in relation to existential acts; and (d) point out ideas to resolve the legal inconsistencies contained in the Statute of Persons with Disabilities. The first chapter deals with the analysis of subjective legal situations and relationships in the light of constitutional civil law, the second deals with the challenges of protecting the rights of people with disabilities and the third chapter talks about the need to there is a guardianship of the existential acts of people with mental/intellectual disabilities. It was concluded that the norm that limits curatorship to patrimonial and business acts is unconstitutional, understanding the need to extend the aforementioned institute to existential acts, in prestige to constitutional norms and principles and compared to them, especially when adequate discernment is absent by the person with a disability.