2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
A person who lacks mental capacity may be declared either subject to interdiction or incapacitation depending on the degree of incompetence. Clause 138 of the Civil Code states that if a person is suffering from a mental disorder (or is deaf, dumb or blind), which makes it impossible for him/her to be held responsible for people or property, s/he can be prohibited from exercising his/her rights (i.e. subject to interdiction).
According to article 141, the interdiction can be requested by the spouse, by the guardian (a minor who has no parents can have a guardian) or the trustee (if someone was subjected to incapacitation, and the degree of the incompetence increases, the trustee can request the interdiction), by anyone in the family that can be a inheritor (“parente sucessível” – not necessarily a descendant; it can be a brother, who, according to the Portuguese law, can inherit) and by the Public Prosecution Service.
If a person is suffering from a mental disorder which is not serious enough to warrant interdiction, but s/he is proved to be incapable of managing his/her assets, s/he may be declared incapacitated in accordance with clause 152 of the Civil Code. Before a request is made to restrict a person's legal competence, a social, medical and psychological study should be carried out (Guimaraes, 2008) in order to:
- establish the mental and physical state of health of the person;
- identify his/her social situation, income and family support, and
- define the probable social and psychological impact of the proposed measure.
To be more exact: the person who is to be declared incompetent (interdiction or incapacitation) is presented to the judge who leads the audience and asks questions such as: “what is your name, what time is it, what can you buy with 20 Euros, where are we?” An expert (normally a psychiatrist) will also ask questions and analyse clinical data in order to make a clinical report. This report is very important to the judge’s decision. Of course the lawyers and public attorney may also ask questions.
Proxy decision making
The conditions for appointing a guardian
A trustee is appointed for people who have been declared incapacitated according to clause 152 and a guardian is appointed for people who are subject to interdiction according to clause 138. According to article 145º the guardian (“tutor”) is the person who represents (acts in the name and the interest of) the person declared interdicted. The person whose incapacity has been declared is, according to article 153º, assisted by the trustee (“curador”) which means that the person cannot sell or donate his/her properties without the approval of the trustee.
How guardianship is arranged
The legal process is extensive and slow and for this reason, a large number of people with dementia are taken care of by their families and carers who act in good faith, but whose decisions taken on behalf of the person with dementia are not legally valid. Families and professionals do not have enough information on the legal procedures and interdiction is looked upon as a social punishment to Alzheimer patients (Guimaraes, 2008).
Provisions for appointing a guardian are contained in several clauses of the civil code. Clause 142 of the Civil Code permits the Court at any time in the proceedings to appoint a temporary guardian to represent the party subject to interdiction in cases where delay could be detrimental to the wellbeing of the latter. One such case would be where there was an urgent need to provide for this person or take care of his/her property.
The choice of guardian
According to clause 143 a guardian can be appointed for an adult who is subject to interdiction and should be assigned in the following order of priority:
- The spouse unless separated or legally unable to hold the position for another reason;
- The person appointed by the parents in a will or in a written document officially recognized (it occurs with minors who are incapable);
- One of the parents;
- The eldest child and then the following children.
If, however, it is not possible for the above to take on the duties of guardian, it is the responsibility of the Court to appoint an alternative having listened to the views of the family.
It is not a simple matter of choice as to whether the spouse or children accept responsibility for guardianship in that they must be excused in order not to do it. The person's descendants may be excused from further duty at their request on the completion of five years, provided that there are other descendants who are capable and willing to take on the duties. If the person has been declared incapacitated, a trustee may be appointed.
The duties and responsibilities of guardians
The guardian is responsible for taking special care of the health of the person subject to interdiction and may, to this end, sell or transfer property, having obtained the necessary legal authorisation (clause 145). The role of the trustee, on the other hand, is to assist the incapacitated person in transactions. This includes the distribution of assets amongst living people
How the financial affairs of the ward are handled
According to clause 154, the responsibility for the administration of the assets of the incapacitated person may be given by the court either wholly or in part to the trustee. If this is the case, a family council is set up and a voting member designated. This person functions as a sub-trustee and exercises the function of guardian.
Measures to protect the ward from misuse of power
Article 153.2 states that if the trustee does not authorise a disposal act (e.g. the sale of property) the Court can decide instead of the trustee. Article 154.3 states that the trustee has to justify the administration of the assets of the person with incapacity.
Payment and liability of guardians
In Portugal there are no professional guardians. They are usually family members. So they don’t receive any payment and can only be reimbursed for their expenses. The payment of a guardian is only foreseen for minors.
The guardians are responsible for the administration they do on behalf of and according to the best interests of the person declared incapable. This means that they have to justify every expense and administrative act.
The Public Prosecution Service and the family council have the power to supervise the guardian’s activities and they can ask the judge to make him/her justify his/her actions. They may also demand the dismissal of the guardian if s/he is not acting according to his/her duties.
Duration of guardianship
There is no time limitation on the appointment of guardians and tutors.
Capacity in specific domains
A person who has been declared interdicted or incapable has no capacity to marry. And if, in spite of the incapacity, the marriage is celebrated, it is null and this nullity can be declared at any time.
According to clause 1601 of the Civil Code, a marriage may be opposed if it is to a person who has been either diagnosed insane (even if s/he is in a period of lucidity) or declared subject to interdiction or incapacitation due to a mental disorder. The invalidation of a marriage contracted by someone who is suffering from dementia can be requested by any direct relative of the couple, heirs or the Public Attorney.
The decision on this issue is made by the Family Court (Guimaraes, 2008).
A person who has been declared interdicted has no voting capacity but a person who has been declared incapacitated can vote.
Any legal transaction carried out by a person who has been subjected to interdiction may be annulled (clause 148). Even legal transactions carried out during the proceedings for interdiction may be annulled, although this is only effective from the date that the sentence is passed and is dependent on proof that the transaction caused harm to the person subject to interdiction.
A person who has been subjected to interdiction as a result of a mental disorder does not have the capacity to make a will (clause 2189 of the Civil Code). A person subject to either interdiction or incapacitation cannot be named as the executor of a will (clause 2321 of the Civil Code).
Nowadays, notaries are increasingly asking for the expertise of 2 psychiatrists to assess the capacity of people over 65 and/or who have a psychiatric disorder. This is not required by law but is done as a precautionary measure to avoid people contesting wills e.g. relatives who were perhaps not or not sufficiently included in the will (Firmino et al. 2008).
According to article 139 of the Civil Code a person who has been declared interdiction is considered a minor. As mentioned above (articles 148 and 149), the acts of people who have been declared interdicted can be annulled.
According to article 488 a person who is not capable of understanding at the moment of acting is not responsible for any damage s/he may cause (unless the person caused the incapacity e.g. by getting drunk).
Incapacity is presumed in the case of people who have been declared interdicted. In other cases, incapacity has to be proved.
In some special cases, as foreseen in article 489º, in accordance with the equity principle, an incapable person may be condemned to pay damages they had caused (if there is no other way to compensate the victim but only if the incapable person has the financial means to pay without prejudice to his/her basic needs).
The tutor or other person responsible by law or contract to take care of the incapable person may be held responsible for the damages caused by him/her (article 490).
According to article 20º of the Penal Code, the person who, due to a psychological disorder, is not able to understand that s/he is acting against the law, is not criminally responsible.
Firmino et al. (2008), Practice of competence assessment in Portugal. In Stoppe, G. (Ed.) (2008), Competence assessment in dementia, Springer Verlag, Wien, pp. 117-119
Last Updated: Wednesday 28 March 2012