A curatela e a tomada de decisão apoiada sob a perspectiva da igualdade constitucionalmente assegurada às pessoas com deficiência

Abstract

Law number 13.146/2015, the so-called Person with Disability Inclusion Law, has been responsible for profound modifications in many pieces of legislation, among them the Civil Code of 2002, particularly in what concerns to the incapacity theory and to the measures correlated to it, as a guardianship, to what became exceptional, and the new institution of the supported decision making. Certainly, the Person with Disability Statute, by eliminating the notion that a person with disability is necessarily incapable, has excluded from the roster of incapables, in the Civil Code of 2002, the people who by infirmity or mental disability, do not possess the necessary judgment capacity to the practice of acts of civil life; the ones who, by “mental disability”, possess reduced judgement capacity; also the exceptional people without full mental development. In this sense, even before Law number 13.146/2015 coming into effect, part of the civil doctrine was already positioned with reservations regarding the paradigm change, affirming that people with disabilities should effectively be protected regarding the relations with a third party due to the fact that these individuals have a vulnerability caused by the disability they present, in a clear vision of these people only under the material perspective of the principle/fundamental right to equality. Thus, this study intends to determine, under the perspective of formal and material equality constitutionally assured to people with disability, if the transformations inserted by the Person with Disability Statute in the institutions of guardianship and of supported decision making indeed mean the legal neglect of the people with disability.