Guardian ship versus supported decision making: civil capacity as instrument of guarantee of autonomy of the person with disability

Abstract

This article aims to respond to the following research problem: according to the decisions of the Court of Justice of the State of São Paulo and legal provisions regarding supported decision making (TDA) in substitution of guardianship, would the reassignment of the interpretation of civil capacity promoted by the Statute for Persons with Disabilities be effective in guaranteeing the autonomy of the person with disabilities? Consequently, it is necessary to understand what is the legal status of disabled persons after the approval of the Disabled Persons Statute, what is the degree of protection that arises from the current rules regarding civil capacity and how guardianship and supported decision making can influence the autonomy of this persons. The methodology applied in this study is bibliographic, pure in terms of results, with descriptive nature and adopts a quantitative and qualitative approach, through the use of the decision analysis method, in which judgments of the Court of Justice of São Paulo concerning guardianship and supported decision making are examined. It was observed that even with some controversies in the application of the Statute and the Civil Code and the lack of norms that enable better enforcement of the supported decision making, judicial decisions examined recognized the autonomy of persons with a disability, favoring greater inclusion in society.