The São Paulo Court accepted, on Wednesday (15), 94, made by three children. The reason is the worsening of Alzheimer’s at an advanced stage, which, according to the petition, made FHC “incapable of performing the acts of civil life.”
With the decision, the son Paulo Henrique Cardoso becomes his father’s provisional curator, responsible for his civil acts and the management of his assets.
Judicial interdiction is an instrument of family law that allows declaring, by decision of a judge, that a person has lost the capacity to answer for their own actions in certain spheres and needs to be represented by another.
Although the issue still carries stigma, experts emphasize that the measure exists, first and foremost, to protect those who go through it — and not to take away rights.
Understand what a judicial interdiction is and how it works.
WHAT IS JUDICIAL INTERDICTION?
Lawyer Camila Monzani Gozzi, specialist in family and succession law at Pinheiro Neto Advogados, explains that interdiction is the judicial process by which it is certified that a person is no longer able to express their own will.
Based on this decision, the Court appoints another person, called a curator, to represent you in acts of civil life, manage your assets and report to the Court. “It is, above all, a form of protection for the person who will be banned”, says Gozzi, who is also a professor at PUC/SP.
The term “interdiction” has largely been replaced by “curatela” with the. The aim of the change was to reduce the pejorative weight of the older word, which carries a connotation of deprivation. In practice, the two terms still coexist in legal vocabulary and in everyday life.
WHEN IS INTERDICTION NECESSARY?
A conservatorship is activated when a person is no longer able to manage their own life without help — either because of the advancement of a disease that compromises consciousness, such as Alzheimer’s or dementia, or due to an unexpected situation, such as a coma.
The Civil Code also provides for its application in cases of serious chemical dependency or those who compulsively waste their own assets.
“This is not a banal measure. It is considered exceptional, as it directly restricts individual autonomy. The Judiciary requires robust proof of incapacity, such as detailed medical reports, before decreeing it”, says Lucas Menezes, a lawyer specializing in civil law and partner at Pessoa & Pessoa Advogados.
HOW DOES THE INTERDICTION PROCESS WORK?
The process goes through three stages, explains Menezes.
First, an initial petition —accompanied by reports and documents proving incapacity— is presented to the judge by someone legally authorized. The judge then interviews the person whose ban is being requested and determines an expert examination, carried out by a doctor or multidisciplinary team. Finally, based on these assessments, the judge delivers a sentence defining the limits of the guardianship.
In the case of FHC, the petition was filed by the children at the 2nd Family and Succession Court of the Central Civil Court of São Paulo and granted the following day by judge Ana Lúcia Xavier Goldman. The initial decision is provisionally valid for asset management acts; the other aspects will only be included after the expert examination provided by law has been carried out.
WHO CAN REQUEST AN INTERDICTION?
The law delimits a specific group of people who can initiate an interdiction process: spouse or partner, relatives and guardians, representatives of institutions where the interdicted person may be hospitalized and members of the Public Prosecutor’s Office, in addition to the interdicted person himself.
“The relationship between the person requesting the ban and the person must be proven at the time the request is submitted, and the judge will only authorize the process to continue once he is convinced that the request is legitimate and formulated by someone authorized by law”, says Gozzi.
WHAT ARE THE CURATOR’S POWERS AND THE RIGHTS OF THE INTERDICTED?
The curator represents the interdicted person in patrimonial acts: negotiations with banks, signing of contracts, administration of assets and management of daily expenses. For decisions with greater impact, such as selling a property or taking out a loan, specific judicial authorization is required. The curator is also required to report periodically to the judge.
There is, however, a limit.
Since the Statute of Persons with Disabilities, guardianship can only concern the patrimonial sphere — never personal or existential aspects. The interdicted person maintains their rights to health, physical integrity and family life. The STF has already established the understanding that neither mental illness nor guardianship automatically means total incapacity.
“The existence of mental illness or guardianship does not mean, in itself, a lack of discernment for all acts of civil life, always requiring an individual analysis”, states Menezes.
In practice, acts carried out by the interdicted person without the representation of the curator, after the curatorship has been decreed, are legally null and void.
“The interdicted person maintains their autonomy to carry out acts of an extra-patrimonial nature, such as getting married and traveling, as well as to carry out acts of a patrimonial nature that are compatible with their capacity”, says Nicole Najjar, partner in asset management, family and succession at the Mattos Filho office.
Gozzi, from Pinheiro Netto, points out that this is the greatest protection for the ward, who continues to have the right to health, safety and family life, for example.
IS THE INTERDICTION REVERSIBLE?
Yes. The law itself establishes that guardianship must last as short a time as possible and be proportional to the needs of each case — which means that it needs to be reevaluated whenever circumstances change.
If the condition that motivated the interdiction ceases to exist, such as in the recovery from an illness or an addiction, any interested party can ask the judge to lift the conservatorship, proving through new examinations that civil capacity has been reestablished. When the cause is permanent, the measure can be extended indefinitely, but is still subject to review. Both the decree and the termination of the conservatorship depend on a court decision.
Menezes, from Pessoa & Pessoa, highlights that the Statute of Persons with Disabilities provides that guardianship is an extraordinary measure, proportional to the circumstances of each case and should last as short a time as possible. “In other words, the law determines that the measure must be limited in time, being maintained only as long as necessary”, says the lawyer.
