COMMITMENT ACCORDING TO PORTUGUESE LAW
V. The legal issue: the legal guardian’s range of powers
140
CHAPTER 1 The Legal Guardian’s Powers in the Situation of “Voluntary” Commitment According to Portuguese Law
Lex Medicinae, N.º Especial (2014) Coimbra Editora ®
to the legis artis pelleted and accepted within the medical practice.
IV. The definition of “voluntary” commitment
141
Geraldo Rocha Ribeiro CHAPTER 1
Coimbra Editora ® Lex Medicinae, N.º Especial (2014)
imposed to the parents to take care of the person and estate of the underage children” (27)(28), result‑
ing from its content, considering Article 1878, paragraph 1 of the CC, a functional power that falls upon the parents of, in the interest of their children, to ensure their safety and health, as well as provide their livelihood, directing their education, representing them and administrating their estate.
The outcome is that the holder of the parental responsibilities undertakes functions of representa‑
tion and suppression of the incapacity that comes with nonage, but it does not limit itself in these, there is still de duty to secure and protect a healthy and balanced development of the minor, exercising his duties in the minor’s interest.
However, the essential content of parental responsibilities does not reside in the allocation of powers for the exercise of representational functions, but rather in the relationship based on the daily care of health, safety and education of the child, with the purpose of its intellectual emotional and devel‑
opment (28). A personalistic perspective is adopted within the parent/child relationship, in which they child must be understood as a person with feelings, needs and emotions, with recognized autonomy and self‑determination, which is greater the higher the extent of its maturity (29).
(27) Francisco Pereira Coelho e Guilherme de Oliveira, Curso de Direito da Família: Introdução, Direito Matrimonial, 4.ª edição, Vol. I (Coimbra:
Coimbra Editora, 2008), pp. 45‑46.
(28) Maria Clara Sottomayor, Regulação do Exercício do Poder Paternal nos Casos de Divórcio, 4.ª Edição (Coimbra: Almedina, 2004), p. 19.
(29) Guilherme de Oliveira, “O acesso dos menores aos cuidados de saúde “ in Temas de Direito da Medicina (Coimbra: Coimbra Editora, 2005), p.
240; e Maria Clara Sottomayor, Regulação do Exercício do Poder Paternal nos Casos de Divórcio, 4.ª Edição (Coimbra: Almedina, 2004), pp. 13‑14.
When we are set before the concept of paren‑
tal responsibility thus defined, we can conclude it results from an idea of care, which corresponds to the set of powers and duties assigned and imple‑
mented in the exercise of the interdict’s tutor’s functions, because parental responsibilities consti‑
tute the common nucleus to all forms of incapacity suppression (30). It is in consideration of the care powered by emotional bonds that the exercise of guardianship exclusively towards the person of the interdict (Article 1933, paragraph 2 of the CC ex vi 139 of the CC), of the inabilitated due to profligacy, insolvents, the inhibited or suspended of their paren‑
tal functions or removed from tutorship is allowed, excluding the administration of estate.
Pires de Lima and Antunes Varela refer that what is intended, as an objective, is “enjoy the pre‑
cious capital of the emotional relationship that can connect the tutor to his pupil, without plunging over the minor’s estate the shadow of the natural incapacity that falls upon him, which could only bring damage to the incompetent” (31). These authors summarize the content of the tutorship in three fundamental aspects: the care for the person, legal representation and administration of the estate (32). The differences of regime between parental respon‑
sibilities and tutorship result from interests of an exclusively financial character: prohibited acts and acts dependent of the court’s permission (Articles
(30) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1796.º a 2023.º), Vol. V (Coimbra: Coimbra Editora, 1995), p. 340.
(31) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1796.º a 2023.º), Vol. V (Coimbra: Coimbra Editora, 1995), p. 453.
(32) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1796.º a 2023.º), Vol. V (Coimbra: Coimbra Editora, 1995), p. 460.
142
CHAPTER 1 The Legal Guardian’s Powers in the Situation of “Voluntary” Commitment According to Portuguese Law
Lex Medicinae, N.º Especial (2014) Coimbra Editora ®
1937 and 1938 of the CC), sanctions arising from its violation (Articles 1939 and 1940 of the CC), the obligation to present a record of the minor’s estate and accountability (Articles 1943, 1944 and 1947 of the CC), responsibilities and duties of the tutor (Articles 1945 and 1946 of the CC), unavail‑
ability of the pupil’s income for whatever is not intended to provide for his sustenance, education and administration of his estate (Article 1936 of the CC).
The only provision about the duties of the tutor towards the person of the minor (the interdict) determines that the tutorship should be pursued with the diligence of a good paterfamilias (Article 1935, paragraph 2 CC). This provision reflects the nature of the bond that comes from the tutorship and the fears linked to it by virtue of the absence of a “strong” as the biological tie as that of the affilia‑
tion, imposing a criteria guide for the tutor’s action, something that the legislator did not consider to be necessary for the parental responsibility, due to the implied relationship. Thus, the objective criterion in evaluating the performance of the tutor is enhanced, imposing itself even if the tutor’s activity is not remunerated (33).
Despite the near coincidence of content between parental responsibility and tutorship, legal consti‑
tution of the tutorships aims to fill in the void, for the minors, left by the absence or inability to exercise parental responsibilities, without, however, intending to replace parenthood (as it occurs in the phenomenon of full adoption), and as such, linked
(33) Cfr. Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1796.º a 2023.º), Vol. V (Coimbra: Coimbra Editora, 1995), pp. 456‑457).
to the absence of strong biological and social ties, the relationship between a pupil and his tutor is, in its essence, unidirectional because the tutorship is established exclusively in the interests of the pupil, being assumed as an altruistic institute in almost its full extent. We say almost because the tutor is entitled to remuneration, as it results from paragraph 1 of Article 1942 of the CC, although it is always dependent on the existence of net income from the minor’s estate.
But the positivization of the right to remu‑
neration does not arise as necessary for the accep‑
tance of the duties and its exercise by the chosen person (34). That is why Article 1936 of the CC does not allow the use of the pupil’s income by the tutor to fulfill his own needs (as we can see in parental responsibilities in paragraph 1 of Article 1896 of the CC). This provision is, therefore, a result of the one‑sidedness of the relationship, as opposed to the relationship of mutual understanding and interdependence that is set on parental responsibili‑
ties, and founded the imposition of reciprocal aid, assistance and respect duties between parents and children (Article 1874 of the CC). Of course when, as far as the interdicts are concerned, the aim is not to attenuate the absence or inability to exercise parental responsibilities, but it will certainly relate to the need to address the needs of the interdict in promoting his care and administration of his estate.
Including, in the first place, the duty to ensure the sustenance of the interdict and to assume the expenses related to his safety, health and education
(34) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1796.º a 2023.º), Vol. V (Coimbra: Coimbra Editora, 1995), p. 466).
143
Geraldo Rocha Ribeiro CHAPTER 1
Coimbra Editora ® Lex Medicinae, N.º Especial (2014)
(Article 1879 of the CC ex vi Articles 139 and 1935, paragraph 1 of the CC). The tutor’s responsi‑
bility will be greater in accordance to the interdict’s needs, regarding, of course, the interdict’s economic resources and the tutor’s possibilities (35).
The tutor will act in the interdict’s interest and name according to the criteria of a bonus pater familias, under the penalty of being liable for the damages caused with mens rea or negligence Article 1945, paragraph 1 of the CC). Besides its executive nature, which runs from the functional powers that are assigned to the tutor, we still characterize him as a singular body that can only be set upon a natural person. The powers of the tutor are characterized as being irrevocable, non‑transferable and of functional‑
ized exercise due to the interdict’s interests (36). The family council and, eventually, the protutor are also bodies of the tutorship.
The family council, an organ that works occa‑
sionally (Article 1957, paragraph 1 of the CC), is consisted of two members, chosen in accordance with Article 1952 of the CC and chaired by the Public Prosecutor (PP) (Article 1951 of the CC). The PP’s presence and the role that he plays are highlighted, as a reflex of the public character of the State’s intervention in the tutorship insti tute (37). For the choice of the two subsidiary members, the degree of proximity, friendships, skills, age, place
(35) J. P. Remédio Marques, Algumas notas sobre alimentos (devidos a menores) «versus» o dever de assistência dos pais para com os filhos (em especial filhos menores), 2.ª Edição (Coimbra: Coimbra Editoras, 2007), p. 204 ss.
(36) Francisco Pereira Coelho e Guilherme de Oliveira, Curso de Direito da Família: Introdução, Direito Matrimonial, 4.ª edição, Vol. I (Coimbra:
Coimbra Editora, 2008), p. 153.
(37) Res de Lima e Antunes Varela, Código Civil Anotado (artigos 1.º a 761.º), Vol. I (Coimbra: Coimbra Editora, 1987), p. 479.
of residency and the interdict’s interests are not indifferent, as it results from paragraph 1 of Article 1952of the CC. To this body are given the necessary and adequate functional powers to undertake the surveillance and supervision of the tutor’s actions (Article 1954 of the CC), as well as a consulting function (see Articles 1931, paragraph 1; 1938, paragraph 2; 1942, paragraph 2; 1949 of the CC).
As a third member we have the protutor, of a singular character, to whom are granted enough powers to permanently monitor the tutor’s activi‑
ties, in the terms stated in paragraph of Article 1955 of the 1 CC. In addition to this, the protutor is assumed as a true auxiliary body to the tutor‑
ship because of the grant of cooperation powers, replacement of the tutor and the representation of the interdict’s on the verge of a conflict of interests with the tutor (Article 1956 of the CC). The person who performs the functions of protutor is one of the members of the family council, elected by it, and should, whenever possible, represent a line of kinship different from the tutor, to counterbalance it, in accordance to Article 1955 of the CC.
The exercise of the functions of member of the family council and protutor is free, pursuant to Article 1959 of the, as opposed to the right that the tutor has to be paid (Paragraph 1 of Article 1942 of the CC). The teleology behind Article 1959 of the CC is settles on the prevention of eventual abuses and “on the thought that it does not repulse to demand a minimum of altruism in the activities of those who the law must call upon to collaborate”
for the care of the interdict on behalf of family
144
CHAPTER 1 The Legal Guardian’s Powers in the Situation of “Voluntary” Commitment According to Portuguese Law
Lex Medicinae, N.º Especial (2014) Coimbra Editora ®
solidarity (38)(40). However, this right will depend on the net proceeds of the interdict, it being under‑
stood that in no way it affects the obligation of acceptance and the exercise of tutorship duties.
Tutorship ends as soon as the cause of the inter‑
diction ceases, after the judicial decision that results in the lifting of the interdiction, in the terms stated on Article 151 of the CC.
One of the ways to achieve the care is to recourse to legal representation. The powers given to the legal guardian come directly from the law or from a court order under the constitution of an underlying relationship of care, unlike what hap‑
pens in voluntary representation, where the assumed relationship stems from the business or contractual intent of the one who is represented.
Despite this difference, in both forms of repre‑
sentation the guardian acts on behalf of the repre‑
sented, where the representative effects end up being identical when legal representation is understood as a legitimizing assumption of the negotiating activity of the guardian. Thus, the legal affairs conducted by the guardian produce legal effects upon the sphere of the one who is represented (Article 258 of the CC).
Like voluntary representation, the performance of the guardian will be undertaken according to the will (even if assumed) and in the interest of the represented.
Whether in voluntary representation, whether in the legal, self‑determination of the person represented is affirmed, which shapes his area of freedom (39).
(38) Pires de Lima e Antunes Varela, Código Civil Anotado (artigos 1.º a 761.º), Vol. I (Coimbra: Coimbra Editora, 1987), p. 490)
(39) WERNER FLUME, Allgemeiner Teil des Bürgerlichen Rechts: Das Rechtsgeschäft, 4. Auflage, Vol. 1, n.º 2 (Berlin — Heidelberg: Springer, 1992), pp. 753‑755).
A representação voluntária corresponde ao exercício do direito de autodeterminação, enquanto meio de realização dos interesses do representado. As Carlos Mota Pinto stated “the duty of the empowered guardian is to consistently develop private autonomy, since his powers are based on a manifestation of the will of the one who is represented” (40).
In turn, legal representation does not bring forth a conflict with the right to self‑determination or personal autonomy. Minors, interdicts and some inabilitated are not, in the legal system’s perspec‑
tive, able to defend their interests and therefore do not have full capacity to manage their interests on their own. It is due to the need for care that the establishment of a legal guardian is vindicated. In this sense, the legal system provides a substitute — through the legal guardian — of the capacity to exercise rights, non‑existent in the case of the legally incompetent (41).
Legal representation aims to reinstate the repre‑
sented in his legal life (42), by allowing the exercise of the rights of the incompetent. The need to overcome a person’s natural incapacity justifies the existence of legal representation out of respect for his self‑determination, even if mediated by the legal
(40) Carlos Mota Pinto, Teoria Geral do Direito Civil, 4.ª Edição por António Pinto Monteiro e Paulo Mota Pinto (Coimbra: Coimbra Editora, 2005), pp. 539‑540.
(41) Carlos Mota Pinto, Teoria Geral do Direito Civil, 4.ª Edição por António Pinto Monteiro e Paulo Mota Pinto (Coimbra: Coimbra Editora, 2005), p. 540.
(42) Uwe John, Die Organisierte Rechtsperson. System und Probleme der Personifikation im Zivilrecht (Berlin: Duncker und Humblot, 1977), pp. 78, 231;
Hans‑Martin Pawlowski, Allgemeiner Teil des BGB. Grundlehren des bürgerlichen Rechts (Heidelberg: C. F. Müller Verlag, 1998), p. 129 ss.
145
Geraldo Rocha Ribeiro CHAPTER 1
Coimbra Editora ® Lex Medicinae, N.º Especial (2014)
guardian (43). This design fits the legal incapacities system present in the Portuguese Civil Code, that is, it assumes the extent of the powers of the guardian to the precise level of the incapacity of the repre‑
sented.
The legal representation powers may include the financial as well as the personal sphere. The representation thus relates to all legal acts for which the represented is not able to perform autonomously and by himself, which includes the provision of consent, with particular emphasis on medical care. Article 1881, paragraph 1 of the CC provides the legal criteria on the extent and content of the legal guardian’s representation powers.
The performance of the guardian, even if is enacted according to the objective criterion of the bonus pater familias (Article 1935, paragraph 2 of the CC), must be compliant with the real or presumed will of the represented and guided by his interests, whether manifested in the prosecution of the right of participation or as a result of the existing frame‑
work of values [prevailing the interpretive criteria foreseen in Article 340, paragraph 3, (presumed consent) and 465, subsection. a) (business manage‑
ment), both from the CC]. This is to customize the powers of legal representation as a means to affirm the legal personality of the incapable, which invari‑
ably requires competency in fact, the power to self conform their lives and interests.
(43) Werner Flume, Allgemeiner Teil des Bürgerlichen Rechts: Das Rechtsgeschäft, 4.Auflage, Vol. 1, n.º 2 (Berlin — Heidelberg: Springer, 1992), p. 754; Karl Larenz e Manfred Wolf, Allgemeiner Teil des Bürgerlichen Rechts (Frankfurt am Main: Verlag C. H. Beck, 2004), p. 833.
It should also be noted that the difference between legal and voluntary representation does not the result from the function inherent to each of them. In both cases, what is at stake is the mate‑
rialization of the right to self‑determination, by providing legal instruments for the affirmation of the represented within the legal trade. In the con‑
text of legal representation, the powers conferred to the guardian are vessels to achieve the interests and will of the represented incompetent, such as, legal instruments to suppress his inability to act. It may differ on the content and criteria for the guardian’s activities. However, in an abstract manner represen‑
tation does not harm, nor offend the person’s right to self‑determination (44). The same function can be performed by voluntary representation, particularly in the context of the advance health care directives, because the suppression of incapacity is not exclusive to legal representation.
The component of care requires effective protec‑
tion of the person’s interest, which are not limited to financial affairs. At hand is not the incapacity to act in legal transactions, but the need for protection of the person to be present in legal transactions and, above all, to have quality of life. The judgment of incapacity must be expressed and proportional, and can be only as effective as a protective measure, meaning, as a necessary and appropriate means of care. Not complying with the proportionality test, the person’s potential capacity for its self‑determina‑
tion should be reserved. The possibility of a parallel
(44) Werner Flume enquadra a representação legal no âmbito da teoria do negócio jurídico (cfr. Allgemeiner Teil des Bürgerlichen Rechts: Das Rechtsgeschäft, 4.
Auflage, Vol. 1, n.º 2 (Berlin — Heidelberg: Springer, 1992), p. 754).
10
146
CHAPTER 1 The Legal Guardian’s Powers in the Situation of “Voluntary” Commitment According to Portuguese Law
Lex Medicinae, N.º Especial (2014) Coimbra Editora ®
approach, in itself, does not require additional risks to the security and interests of the incompetent besides the assertion of the right of freely develop the personality.
VI. Proposed solution: the powers of the legal