Cambler, Everaldo Augusto2024-11-272024-11-272022CARDOSO, Marina Araújo Campos. A ausência de discernimento como cláusula geral para o reconhecimento da incapacidade civil absoluta e relativa São Paulo (SP), 2022. 128 f. Tese (doutorado) - FADISP, São Paulo, 2022.http://repositorio.unialfa.com.br/handle/123456789/480The theory of disabilities, despite its protective purpose, is seen as a source of discrimination and social exclusion, since it was historically created and used as a way to protect family assets, revealing the patrimonialist model that prevailed until the entry into force of the 1988 Brazilian Federal Constitution. In addition, a general and abstract model of curatorship had always been Applied, characterized by suppressing the possibility of performing any act by the incapable, without analyzing the individualities, needs and possibilities of each being. The Statute of Persons with Disabilities amended the Civil Code to treat as absolutely incapable only those under sixteen, considering as relatively incapable: minors between sixteen and eighteen, habitual drunks, drug addicts, prodigals and anyone who is unable to express their will. It so happens that there are people over the age of sixteen who aren’t able to express any sign of will and need the application of a protective system for the absolutely incapable, built through a network of protective devices in all legislation, especially in the Civil Code. These people also need a curator with broader powers of representation, being able exceptionally to achieve existential acts, if they haven’t manifested themselves previously about existential issues or medical treatments and isn’t able to understand and take a stand in the face of these questions. This possibility does not imply the elimination of the person's performance, giving exclusively to the curator the possibility of acting, on the contrary, in principle the performance must be restricted to business acts of a patrimonial nature and the curatorship’s limits must be individualized, flexible and reach only what is necessary to supply each individual’s vulnerability. Civil capacity is the rule for people over eighteen years of age, so that, with the exception of cases of civil disability due to age, the judicial recognition of civil incapacity must have as its only presupposition the absence or limitation of discernment, provided for by law through general clauses of absolute and relative civil incapacity. The legislator shouldn’t foresee specific cases of disability, such as the habitual drunks, drug addicts and prodigals, under penalty of generating discrimination and social exclusion, as happeened with disabled people. It’s only possible to conclude for incapacity if the person, for some reason, doesn’t have the ability to understand the facts around him and to position himself in front of them, which may result from the development of diseases, acidentes, continuous use of alcohol or narcotic substances, as well as it may originate from a disability mental or intellectual or in countless other factors. What isn’t admitted is to establish civil incapacity a priori, as occurred with disability until the entry into force of the Statute of Persons with Disabilities. Once the person’s cognitive limitation is recognized, the judge must establish whether it’s absolute incapacity, if the absence of discernment is total, or relative, if the person is able to interact with the external environment, even with limitations. Once the person’s lack of discernment is verified, absolute civil incapacity must be recognized, attracting the application of various protective norms of this person’s rights, but the establishment of the curatorship must always be personalized, with limits established on a case-by-case basis, according to the needs and possibilities of each one and, in principle, restricted to assistance in patrimonial acts. Only in extreme cases in which the person doesn’t show discernment will the curator be able to perform, exceptionally, existential acts to safeguard the rights of the personality of the person concerned. The method used in the elaboration of this work is the bibliographical research in books, scientific articles, theses, legislation in force and jurisprudence, always seeking to present a critical analysis of the data collected with the research.ptCapacidadePersonalidadeCuratelaInterdiçãoTomada de Decisão Apoiada