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MAIOR ACOMPANHADO O ESTUDO SOBRE A REFORMA LEGISLATIVA DO REGIME DE MAIOR ACOMPANHAMENTO À LUZ DA LEI N.o 14/2018 DE 14 DE AGOSTO
| Summary: | In 2018, Portugal passed Law n.o49/2018, which formally terminated the traditional system of interdiction and disqualification, establishing a regime of adult under guardianship with a focus on the authorization of individual acts, in accordance with the principle of assisted decision-making advocated by the Convention on the Rights of Persons with Disabilities (CRPD). This marked a new phase in adult protection legislation in terms of supporting decision- making. The regime emphasizes respect for the autonomy of the parties, requires courts to appoint guardians according to the specific needs of each case, limits the powers of guardians to specific areas, and preserves the autonomous decision-making capacity of the persons under guardianship. This text aims to analyze the structure of the new legal system and the underlying change in values, discuss the legal balance between protection and autonomy, and the implications for reforms in other jurisdictions.This thesis focuses on the accompanied adult regime, created by Portuguese Law No. 49/2018, and conducts a systematic analysis based on three main aspects: legislative developments, the design of the regime, harmonization with international human rights, and comparison with the Chinese legal system. The results of the research show that the transformation of this regime not only marks a significant change in Portuguese civil law, moving from substitute decisions to supportive decisions, but also puts into practice the central spirit of equal legal capacity and respect for the will of the parties, as required by Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Firstly, the greatest innovation of the Portuguese system lies in the fact that the legislation is clearly based on the principle of minimum intervention and on the individual case. The courts must decide on the situation, scope, and powers of the companion according to the specific conditions of the person being accompanied, such as dementia, physical disability, psychological impact, etc., and provide assistance only to the extent necessary, without completely depriving the person being accompanied of their legal capacity. This model deeply implements the principle of equal legal capacity for all and promotes supported decision-making as advocated by the CRPD, replacing the total substitution model of the old system. The system also emphasizes the importance of the will expressed by the person being accompanied, ensuring that they receive assistance in accordance with their will, thus maintaining personal dignity. |
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| Main Authors: | Lei, Sin Man |
| Subject: | Adult under guardianship regime Law n. o 49/2018 Protection of autonomy Protection of adults reform of the interdiction and disqualification regime Regime de maior acompanhado Lei n.o 49/2018 Proteção da autonomia Proteção de adultos reforma do regime de interdição e inabilitação |
| Year: | 2025 |
| Country: | Portugal |
| Document type: | master thesis |
| Access type: | open access |
| Associated institution: | Universidade de Coimbra |
| Language: | Portuguese |
| Origin: | Estudo Geral - Universidade de Coimbra |
| Summary: | In 2018, Portugal passed Law n.o49/2018, which formally terminated the traditional system of interdiction and disqualification, establishing a regime of adult under guardianship with a focus on the authorization of individual acts, in accordance with the principle of assisted decision-making advocated by the Convention on the Rights of Persons with Disabilities (CRPD). This marked a new phase in adult protection legislation in terms of supporting decision- making. The regime emphasizes respect for the autonomy of the parties, requires courts to appoint guardians according to the specific needs of each case, limits the powers of guardians to specific areas, and preserves the autonomous decision-making capacity of the persons under guardianship. This text aims to analyze the structure of the new legal system and the underlying change in values, discuss the legal balance between protection and autonomy, and the implications for reforms in other jurisdictions.This thesis focuses on the accompanied adult regime, created by Portuguese Law No. 49/2018, and conducts a systematic analysis based on three main aspects: legislative developments, the design of the regime, harmonization with international human rights, and comparison with the Chinese legal system. The results of the research show that the transformation of this regime not only marks a significant change in Portuguese civil law, moving from substitute decisions to supportive decisions, but also puts into practice the central spirit of equal legal capacity and respect for the will of the parties, as required by Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Firstly, the greatest innovation of the Portuguese system lies in the fact that the legislation is clearly based on the principle of minimum intervention and on the individual case. The courts must decide on the situation, scope, and powers of the companion according to the specific conditions of the person being accompanied, such as dementia, physical disability, psychological impact, etc., and provide assistance only to the extent necessary, without completely depriving the person being accompanied of their legal capacity. This model deeply implements the principle of equal legal capacity for all and promotes supported decision-making as advocated by the CRPD, replacing the total substitution model of the old system. The system also emphasizes the importance of the will expressed by the person being accompanied, ensuring that they receive assistance in accordance with their will, thus maintaining personal dignity. |
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