· In the event that more than one tutor is appointed by testamentary disposition without giving priority, it is presumed that the tutorship has been entrusted to the first and that the others will succeed him in the order of appointment in the event of death, disability, shady obstacles or others. According to article 1768 of the Criminal Code, the request for prohibition of incapacitated consent is made by the spouse, one of the parents or a close relative. In the case of serious mental illness or if the request is not made by one of the persons mentioned, it is the responsibility of the Public Prosecutor`s Office. The spouse not separated will preferably be the trustee. If the incapable person does not have it, one of the parents. If this is not possible, the next offspring. In the absence of all these people, the choice rests with the judge. In assessing an instrument violation in December 2011, Minister Paulo de Tarso Sanseverino confirmed in a monocratic decision the judgment refusing to appoint a special representative in the procedure for the elimination of domestic violence, in which the deputy is the perpetrator, the parents of minors are the defendants and the minors are not parties. However, in April 2012, the third committee, assessing the regiment`s complaint, upheld the decision, arguing that „the appointment of a special administrator is only justified if the interests of the unilateral and his legal representative are informed.“ Also with judicial authorization, the guardian cannot under threat of nullity: they cannot be guardians and are exempt from guardianship if they exercise it: it should be noted that in the legal modality, the judge decides who can best take charge of the guardianship and become the guardian of the minor. The Institute should not be confused with the parent Institute under article 1.728 of the CC. The guardian is appointed to be responsible for the minor after the death of the parents or in the absence of these parents or in the event of loss of family strength. The syndic is appointed to represent the interests of the most disabled or disabled persons in relation to the limits set in advance by the judge, which depend on the degree and nature of the disability. There are three ways to grant guardianship to someone, provided that the person who is to become a guardian has agreed to assume the position.
These include: The curator`s role also includes protecting the right to socialize in order to prevent the incapable person from living in isolation. A fundamental principle enshrined in the Brazilian Constitution is the dignity of the human person. Hence the fundamental rights and guarantees aimed at the protection and well-being of all. Even if they are surrounded by rights guaranteed by the legal system, some people are unable to invoke them and pursue their own interests for a permanent or temporary reason. For them, the Civil Code (CC) introduced curatela. According to this provision, „the guardian is liable for damage caused to the guardian by fault or deception; is, however, entitled to remuneration for what he actually spends on the exercise of guardianship, except in the case referred to in Article 1.734, and to remuneration proportional to the size of the property managed. The article refers to guardianship, but is applicable to Curatela because of the wording of article 1.774 of the CC. If the elderly are unable to take care of themselves, their safety, if they are unable to manage their property, to maintain their daily activities, in short, if they are unable to perform the actions of civil life, Curatela can be an alternative. The right to appoint a guardian belongs to the parents. The appointment must be contained in a will or other authentic document. The appointment of a guardian by a father or mother who did not have family authority at the time of death is null and void. Guardianship and curatorships are legal institutions aimed at administering and/or administering the civil life of persons who are unable to because of their age (under 18) or a temporary or permanent disability.
According to the Civil Code, minors under the age of 16 (art. 3) and relatively capable of being over the age of 16 and under the age of 18 (art. 4) are totally incapacitated. In accordance with the Statute of Persons with Disabilities (Act No. No. 13,146/2015), a disabled person is defined as a disabled person who suffers from a long-term disability of a physical, mental, intellectual or sensory nature which, in interaction with one or more barriers, may hinder his or her full and effective participation in society under the same conditions as other persons (Article 2). Faced with these limitations, the Brazilian legal system introduces guardianship and curatorial institutions to respond to the rights and duties of incompetent and relatively capable people. GUARDIANSHIP (articles 1.728 to 1.766 of the Civil Code) – Guardianship is the institution for minors under 18 years of age when they die, when they are absent or when domestic violence is destroyed by both parents. – If any of these cases occur, at least one educator must be appointed to educate, feed, feed, manage property, represent the guardian and perform the tasks originally assigned to the parents. – The appointment of the guardian may be made in advance by the parents (as long as family authority exists) by means of a will, an annual contract or other means that can prove the authenticity of their will. If the parents have not appointed a guardian, the order of exercise of guardianship is as follows: ascendants (grandparents, great-grandparents, etc.) to a greater extent, secondary persons up to the third degree (uncles, cousins, nephews, etc.) or, in the absence of parents, persons living with the guardian. – Even if the guardian is appointed by the parents, it is necessary to take legal action to confirm the act.
CURATELA (Articles 1.767 to 1778 of the Civil Code) – Curatela is the institute for those who, for temporary or permanent reasons, cannot express their will, the usual drunken and toxic drug addicts and the prodigal son. – In these cases, the order in which the trustee is appointed is as follows: spouse/partner, parents and descendants who can reach a higher degree (children, grandchildren, great-grandchildren, etc.), representatives of the institution where the parish priest is housed and the Public Prosecutor`s Office. Failing this, it is up to the judge to appoint the healer. In addition, Curatela can also be shared and can be exercised by more than one person. – The curatela of persons with disabilities is an exceptional protection measure and should be proportionate to the needs and circumstances of each case and should be as brief as possible. – Curatela only concerns actions related to property rights and commercial rights. – The definition of curatela does not infringe the right to one`s own body, sexuality, marriage, privacy, education, health, work and choice. – Curatela must be identified or validated by legal action. Were you in doubt? Make an appointment now! The curatela, on the other hand, is responsible for someone who is responsible for an adult or an elderly person who is unable to exercise his or her will. Curatorship must also be granted by a judge and the one who receives curatorship is called a healer.
For the Minister, even if there is sufficient basis to confirm the merits of the application, the judge cannot waive the possibility of challenging or appointing a special administrator, „consistent with the constitutional principles of adversarial and broad defence and due process, guarantees inherent in a democratic state governed by the rule of law“. If you refuse, the process will be absolutely null and void. The healer has the responsibility to look after adults and the elderly who are unable to manage their property or express their will. In addition to alcoholics, there are also drug addicts and so-called lost people. The protutor receives a modest premium for the inspection performed. If the minor`s property has a substantial value, the judge may make the exercise of protection subject to the provision of sufficient security and refuse it if the guardian is of recognized capacity. Who can be taught? children and adolescents under the age of 18 whose parents are dead, unknown or who have legally lost parental authority over their children; due to abuse, neglect or lack of conditions to care for them, or for any reason absent. · people with poor procedures or breaches of honesty and those guilty of abuse in previous tutorials; However, in a decision of October 2011, Minister Sidnei Beneti of the third organ of the STJ concluded, interpreting that article, that the special curator is required only for the incapacitated person who has the condition of a party, and not for a minor involved in the process, even if serious facts are alleged. which could put him in danger.
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