FROM GUARDIANSHIP TO SELF-GUARDIANSHIP: BRIEF CONSIDERATIONS BETWEEN BRAZIL AND SPAIN FROM THE PERSPECTIVE OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

Abstract

This study aims to analyze the institutes of guardianship (curatela) and self-guardianship (autocuratela) in the Brazilian and Spanish legal systems, taking as its theoretical framework the concept of the capacity of persons with disabilities introduced by the Convention on the Rights of Persons with Disabilities (CRPD). The research seeks to answer the following question: what are the distinctions and similarities between the institutes of guardianship and self-guardianship in Brazil and Spain in the current context? To this end, the specific objectives include understanding guardianship under the Brazilian Statute of the Person with Disabilities (EPD) and considerations regarding self-guardianship within the Brazilian legal framework, followed by the study of these same institutes after the entry into force of Law 8/2020 in Spain, in order to ultimately ascertain their similarities and differences. This is an exploratory, legal-dogmatic study that draws upon specialized literature and compares the selected legislations to achieve the proposed objectives. In conclusion, both Brazil and Spain seek to give effect to the autonomy of persons with disabilities. However, the Spanish system, by explicitly and comprehensively regulating the institute of guardianship — something that does not exist in the Brazilian system — more diligently complies with the determinations of the CRPD.