Are legal incapacity and guardianship the same thing?
In everyday use the terms get mixed up, but the law has changed. The Statute of Persons with Disabilities did away with the idea of total legal incapacity and left guardianship as a protective measure, exceptional and proportionate, aimed at financial and business acts. The term used in proceedings today is guardianship.
Who can apply for guardianship?
The spouse or partner, relatives, the person concerned themselves and, failing those, the public prosecution service. In choosing the guardian, the judge weighs the emotional bond, the closeness of daily contact and the ability to manage assets, not simply the degree of kinship.
Does a person under guardianship lose all their rights?
No. Guardianship covers acts of a financial and business nature. It does not remove the right to marry, to start a family, to make family planning decisions, to study, to work or to vote. The scope of the measure is set out in the judgment, according to what the person genuinely cannot do.
How does the process work and how long does it take?
The process is judicial and involves evidence of the medical condition, an interview of the person by the judge and an opinion from the public prosecution service. Its duration varies with the court district, the complexity of the case and how quickly the medical examination is carried out. Where there is an immediate need, an interim guardian can be appointed before judgment.
Is there a less restrictive alternative to guardianship?
Yes, supported decision-making. It is for those who can express their own wishes and need only support in deciding. The person themselves chooses two trusted supporters, and the limits of that support are set by the court, without any loss of legal capacity.
What obligations does an appointed guardian have?
The guardian manages the assets and represents the person in financial matters, always in their interest, and accounts to the court for that administration. Some acts, such as selling property, require specific court authorisation. Keeping the paperwork organised from the outset avoids problems when the accounts are filed.
Is guardianship permanent?
No. It lasts as long as the cause that prompted it and can be reviewed. If the person regains autonomy, the guardianship can be lifted. It is also possible to change the scope of the measure or replace the guardian when circumstances change.
Do we need to come to the office in person?
No. The service can be provided entirely remotely, allowing the documents to be reviewed and the case followed with security, speed and discretion.
If you prefer to meet in person, Doering Darcie Advocacia e Consultoria has offices in Porto Alegre and São Paulo for meetings by prior appointment.
