A curatela como instrumento de apoio à emancipação da pessoa com deficiência intelectual

• Autor(a) principal: Almeida Junior, Vitor de Azevedo
• Data de Publicação: 2018
• Tipo de documento: Tese
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da UERJ
• Texto Completo: http://www.bdtd.uerj.br/handle/1/9368
• topic: Civil capacity; Guardianship; Person with mental disability; Social model; Autonomy; Capacidade civil; Curatela; Pessoa com deficiência intelectual; Modelo social; Autonomia; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO

This is a theoretical study, by means of bibliographical research, that aims at examining the recognition of civil capacity of persons with mental disabilities, from the express provision in article 6 of the Brazilian Rights of Persons with Disabilities Act (Law n. 13.146/2015). The profound changes promoted in the regime of civil (in)capacity by such Legislation were propelled by the International Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol ratified and incorporated into the Brazilian legal system as Constitutional norm, under paragraph 3 of article 5 of the Brazilian Federal Constitution. The CRPD has adopted the social model for disabilities, that definitively includes the protection of the persons with disabilities under the human rights umbrella/agenda and determines the promotion of such fundamental rights and their broad social inclusion. The research reveals the long history of social invisibility and restraint of the rights of persons with disabilities and presents the need for rupture from the conventional concepts of capacity and autonomy in the name of the realization of human dignity. For such it is indispensable the establishment of new basis, in a emancipatory perspective of civil capacity, that allows for the transition from a rigid, structural and excluding viewpoint, towards a dynamic, promotional and inclusive concept of the (in)capacity legal regime. In this sense, the recognition of the capacity of persons with disabilities implies effective and appropriated support measures, as a way to prevent abuses and ensure their social participation under equal conditions, that include the adoption of instruments proportional to each person circumstances, for the protection of the existential and economic interests. The research analyzed some of these instruments, focusing on the new profile of guardianship to demonstrate the imperiousness of such reconstruction (or a new reading) of the legal mechanisms able to promote such emancipation and attend to the best interest of the persons with disabilities. This work has sought to equally demonstrate the importance of such mechanisms for the conquering of autonomy, especially by the person with mental disability, by all means indispensable to the preservation of their dignity.