A teoria das capacidades à luz do Estatuto da Pessoa com Deficiência: humanização da curatela e a garantia aos atos existenciais as pessoas com deficiências intelectuais

Abstract

This is a study on the theory of abilities after the changes in the Brazilian law of inclusion, called the statute of the person with disabilities, focusing on the study of the support system that has as its main institute the guardianship and analyzing especially the guarantee to the practice of existential acts. The problem is presented in face of the modifications in the theory of capabilities that irradiate effects in the whole legal system and brings new guidelines for the approach to disabilities, especially the importance of not limiting the rights of people with disabilities, having as its core the search for the emancipation of these people to give them the maximum autonomy within the limitations they present, but without confusing disability with incapacity, as a condition sine qua non. Aiming to explore the autonomy of people with disabilities and the guarantee to practice legal acts, it will be demonstrated the need for a support system adaptable to the particularities of each person with a disability that seeks to functionalize the support measures, guardianship and supported decision-making, aiming at the daily challenges and the possibilities of exercising their individual freedoms. Intending to provoke reflection on the impediments that this group faces, for, many times, the barriers are invisible, people who do not coexist with a person with an intellectual disability, being necessary the society's awareness to respect the differences. Finally, the study explores the importance of autonomy for the enforcement of the rights of people with disabilities, who, even with civil capacity limitations, must have privileged, to the utmost, the choices of their own life that they concretely express, granting, at the same time, protection and support, without replacing the will of people with disabilities by third parties. Therefore, this study has, beginning and end in the analysis of the modifications in the theory of capabilities, especially the functionalization of the support measures and the extension of the support to patrimonial and existential acts, being used the deductive method with bibliographic and jurisprudential research about the theme, especially from the standpoint of the civilconstitutional law and the protection of people with intellectual disabilities.