Book contents
- Frontmatter
- Preface
- Contents
- List of Contributors
- Africa Children and Informal Justice Systems in Africa
- Africa The Law and the Protection of the Family in Sentencing Primary Caregivers of Children: Practice from a Few African Countries
- Albania Cross-Border Disputes over Child Custody and Access Rights and the ECtHR Jurisprudence in the Case of Albania
- Australia Greater Recognition of Adults as Individuals?
- Belgium Belgian Family Law Anno 2018
- Brazil The Necessary Subordination of the Interests and Commitment of Adults in the Construction of a Preventive Public Policy to Reduce the Sexual Vulnerability of Children in Brazil
- Canada Efforts to Address Intimate Partner Abuse and High-Conflict Custody Disputes in Canada
- China A Survey on the Intestate Succession Views and Relevant Habits of Private Entrepreneurs in Contemporary China and its Legislative Implications
- China Child Sexual Assault in China and Preventive Education
- England and Wales To Procreate, or Not, That is the Question
- Germany Law Reforms in Abundance
- Hong Kong Cutting Our ‘Children's’ Coats According to Our Cloth: Hong Kong Family Mediation Regarding Children's Arrangements in the Context of Culture and Law
- India Family Privacy in India
- Ireland Sheltering the Homemaker in Irish Family Law: Ireland's Failure to Evolve with the Shifting Social and Family Norms
- Italy Robots for the Family: Protection of Personal Data and Civil Liability
- Japan The Japanese Supreme Court should Promote Family Law Reform More Drastically
- Korea Recent Development in Korean Family Law: Best Interests of the Child, End-of-Life and Sexual Minorities
- Myanmar Marriage under Myanmar Customary Law
- New Zealand A Review of Relationship Property and the Māori Way of Life in Parenting Disputes: Changes Afoot
- Norway The Strengthening of Fathers’ Rights in Norwegian Child Law and Other Recent Reforms
- Papua New Guinea Child Welfare and Protection Law Reform in Papua New Guinea: A Critique
- Poland Supporting Elderly Persons in Polish Family and Succession Law
- Portugal Chronicle of a Legal Reform Foretold: The Shape of the Law to Come Regarding Incompetent Adults in Portugal
- Serbia The Case of ‘Missing Babies’ in Serbia before the European Court of Human Rights
- Singapore The Evolution of the Singapore Family Justice Courts: A Journey to Serve Families and Children Responsibly
- South Africa The Implications of Varying Statutory Minimum Age Thresholds for Child Consent in Respect of Minors Granted Majority Status Through Civil Marriage in South Africa
- Sweden, Norway and the USA Regulations of and Remedies for Corporal Punishment Against Children
- Index
Portugal Chronicle of a Legal Reform Foretold: The Shape of the Law to Come Regarding Incompetent Adults in Portugal
Published online by Cambridge University Press: 31 January 2019
- Frontmatter
- Preface
- Contents
- List of Contributors
- Africa Children and Informal Justice Systems in Africa
- Africa The Law and the Protection of the Family in Sentencing Primary Caregivers of Children: Practice from a Few African Countries
- Albania Cross-Border Disputes over Child Custody and Access Rights and the ECtHR Jurisprudence in the Case of Albania
- Australia Greater Recognition of Adults as Individuals?
- Belgium Belgian Family Law Anno 2018
- Brazil The Necessary Subordination of the Interests and Commitment of Adults in the Construction of a Preventive Public Policy to Reduce the Sexual Vulnerability of Children in Brazil
- Canada Efforts to Address Intimate Partner Abuse and High-Conflict Custody Disputes in Canada
- China A Survey on the Intestate Succession Views and Relevant Habits of Private Entrepreneurs in Contemporary China and its Legislative Implications
- China Child Sexual Assault in China and Preventive Education
- England and Wales To Procreate, or Not, That is the Question
- Germany Law Reforms in Abundance
- Hong Kong Cutting Our ‘Children's’ Coats According to Our Cloth: Hong Kong Family Mediation Regarding Children's Arrangements in the Context of Culture and Law
- India Family Privacy in India
- Ireland Sheltering the Homemaker in Irish Family Law: Ireland's Failure to Evolve with the Shifting Social and Family Norms
- Italy Robots for the Family: Protection of Personal Data and Civil Liability
- Japan The Japanese Supreme Court should Promote Family Law Reform More Drastically
- Korea Recent Development in Korean Family Law: Best Interests of the Child, End-of-Life and Sexual Minorities
- Myanmar Marriage under Myanmar Customary Law
- New Zealand A Review of Relationship Property and the Māori Way of Life in Parenting Disputes: Changes Afoot
- Norway The Strengthening of Fathers’ Rights in Norwegian Child Law and Other Recent Reforms
- Papua New Guinea Child Welfare and Protection Law Reform in Papua New Guinea: A Critique
- Poland Supporting Elderly Persons in Polish Family and Succession Law
- Portugal Chronicle of a Legal Reform Foretold: The Shape of the Law to Come Regarding Incompetent Adults in Portugal
- Serbia The Case of ‘Missing Babies’ in Serbia before the European Court of Human Rights
- Singapore The Evolution of the Singapore Family Justice Courts: A Journey to Serve Families and Children Responsibly
- South Africa The Implications of Varying Statutory Minimum Age Thresholds for Child Consent in Respect of Minors Granted Majority Status Through Civil Marriage in South Africa
- Sweden, Norway and the USA Regulations of and Remedies for Corporal Punishment Against Children
- Index
Summary
INTRODUCTION
A government bill has just been approved by the Portuguese Parliament which will introduce major amendments into the legal framework applicable to the guardianship of incompetent adults.
There are many reasons why this legal reform has become urgent, as will be explained in section 2 of this article. On the one hand, sociological and demographical phenomena have occurred in recent decades, as well as significant developments in medicine; on the other hand, some reasons arise from the legal standard of protection that ought to be awarded in accordance with the Portuguese constitutional framework and in compliance with the international commitments on the safeguarding of human rights, to which the Portuguese state is duty bound to comply.
The combination of those non-legal and legal factors led to the obsolescence of the legal framework currently applicable to incompetent adults. As will be described in section 3, the law on the books does not offer an appropriate response, nor does the law in action provide a suitable response to the problem of adults who require special protection, as they present a particular vulnerability that has to be properly addressed by the law.
The new provisions that are included in the recently approved new Law (Law 49/2018, dated 18 August 2018) involve a paradigm change regarding the legal approach to this problem. The paternalistic intervention based on the restriction or deprivation of legal capacity will be replaced by a more supportive intervention based on the promotion of autonomy and inspired by the principle of proportionality. In section 4, the new legal framework will be considered in order to highlight the main traits of the law that will come into force in this area in February 2019.
THE NEED FOR A REFORM OF THE LEGAL FRAMEWORK APPLICABLE TO INCOMPETENT ADULTS IN PORTUGAL
As the data on demographic trends shows, the ageing of populations is a phenomenon perceptible worldwide; not only is there a rise in the number of older persons, but their proportion amongst the overall population is also increasing. Portugal is no exception – the population aged 60 years or over represents 28 per cent of the overall Portuguese population.
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- Information
- International Survey of Family Law 2018 , pp. 441 - 454Publisher: IntersentiaPrint publication year: 2018