A possibilidade excepcional de extensão da curatela sobre a dimensão existencial do curatelado

Abstract

The present work aims to investigate, through the articulation of the legal values enshrined in Law 13.146/2015, as well as the principle of human dignity in its protective facet, established by the Magna Carta in force, the possibility of exceptional extension of guardianship over the existential dimension of the person, when the individualized therapeutic project indicates the existence of substantial commitment to the formation or externalization of the will in any area of life. The aforementioned assertion, in this vein, seeks to fill a possible protective gap in the current legal protection provided to the person with a disability, that is, the apparent absence of existential protective mechanisms for exceptionally severe cases, in which the subject, for any decisive reason, does not present factual possibility of understanding, discerning and expressing oneself in the face of reality, thus demanding more expressive care support. In this way, it sought, through the methodology of bibliographic review, to review the general assumptions on which civil law is built, in the sense of mobilizing the unthinkable basic instrument for the appreciation of the aforementioned hypothesis. In this context, propaedeutic considerations were built on civil capacity, tracing its substantial distinctions in relation to legal personality, thus unraveling its conformation in the period before and after the entry into force of the Brazilian Inclusion Law. Subsequently, some considerations were made on the special interdiction procedure provided for in the Code of Civil Procedure, as well as on the main provisions of curatorship within the scope of the aforementioned Law, weaving the relationship between both regulations. Finally, it was possible to reach the central object of the present analysis, concluding, thus, by the confirmation of the investigated hypothesis. This conclusion is even reinforced, in the end, by the examination of decisions of the Judiciary which, when confronted with the same factual substrate that guided the construction of this monograph, fully agrees with it.