SISTEMA DAS CAPACIDADES APÓS A LEI BRASILEIRA DE INCLUSÃO E A QUESTÃO DA (DES)PROTEÇÃO DA PESSOA COM DEFICIÊNCIA INTELECTUAL E MENTAL

Abstract

The existence of a pluralistic society, in this aspect praised by the Preamble of the Federal Constitution, and the significant number of persons with disabilities in Brazil emphasize the need for social recognition, overcoming the long historical trajectory of invisibility and disrespect for their singularities and vulnerabilities. In addition, it highlights the importance of studying how this part of the population exercises their rights and obligations. In this context, the theory and regime of civil capacity were substantially changed by the microsystem dedicated to the inclusion of persons with disabilities, which is mainly formed by the International Convention on the Rights of Persons with Disabilities and by Statutory Regulation governing Persons with Deficiencies (Statutory Regulation No. 13.146/2015). In view of this, the present research aims to understand the changes suffered in the theory and in the regime of capacities. Furthermore, considering the protective bias of the incapacity, this study sought to answer whether the incapacity model established by the Statutory Regulation governing Persons with Deficiencies, generated a lack of protection for people with intelectual and mental disabilities. In this sense, the investigated problem becomes evident – the normative post-statute of incapacities generated a lack of protection for people with intelectual and mental disabilities? In order to achieve the general objective of this qualitative research the deductive method is used, combined with the interpretive method, based, in general, on the techniques of bibliographic review and documentary research; in due course, a historical perspective and a secondary jurisprudential investigation are used. In the end, it is concluded that there was a decrease in the protective sphere of people who, due to a disability or illness of an intellectual or mental nature, do not have the necessary discernment to conduct civil acts. There is a setback in terms of protection, since they no longer benefit from the specific protectionist measures to the legal sphere of the absolutely incapable. In theory, there would be other points of unprotection, however, it was up to the jurisprudence to fight them, in this sense, in practice, there may be an institution of curator with powers of representation to support the relatively incapable and curatorship covering patrimonial, business and existential acts. Nevertheless, challenges are identified in the scope of jurisprudential application in view of the existence in the vast majority of generic decisions and the low adherence to Supported Decision-Making. Furthermore, it was found that the Law nº 13.146/2015 could have offered a more accurate solution to the possible problem of generic decisions if it had established useful criteria useful criteria for assessing the person's discernment and for modulating effects for curatorship purposes; and determined the obligation of multidisciplinary forensic report in the curatorship procedure.