Existencialidade e patrimonialidade na curatela: a pessoa com deficiência mental ou intelectual e a divisão dos atos da vida civil

Abstract

The Statute of the Person with Disabilities, taking as a background the existentiality-patrimoniality binomial, limited the curatorship and consequently the curator's performance only to civil acts of a patrimonial essence, leaving the curatorship himself in charge of the civil acts of an existential essence. Given this scenario, and considering that such division is crossed by controversies in the Civil Code - CC, based on a legal-dogmatic methodology, with a legal-theoretical guindance, which is developed especially based on bibliographic analysis, but also on jurisprudence, the present study seeks to understand whether such division is adequate for the purposes for which it is intended, specifically in the case of the curatorship of a person with a serious mental or intellectual disability, taking as a hypothesis, therefore, its insufficiency to capture the reality as it is, for three reasons: one, in view of the fact that it disregards the individual cognitive grammars involved in the decision-making process of the person with mental or intellectual disabilities, two, in view of the fact that it represents an overvaluation of individual autonomy, based on in a liberal conception of the subject, disregarding any notion of relational autonomy, fundamental to society, and, three, in view of the fact that it is immanently problematic, failing to accurately capture dynamic and multi-complex situations.