Constituição de patrimónios em benefício da pessoa com capacidade diminuída

: perspetiva de soluções de direito privado

Abstract

The present study deals with the possibility of constituting functionalized patrimonial masses to the benefit of people with special needs. There is a generalized tendency towards the adjustment of Civil Law norms and institutes to the new international guidelines concerning vulnerability, which often leads to important reforms in several legal orders, as the one recently occurred in Portugal. Besides the revamping of the capacity for the exercise of rights civil regime, we are also witnessing the emergence of other private legal instruments that may be used to fulfil the person’s needs and aspirations, according to these new paradigms and social realities. We hereby adopt the perspective of the patrimony’s efficient organization and planning, resorting to private law instruments. These instruments, based on private autonomy, contribute to create a patrimonial support that can facilitate the social integration of its beneficiaries, while allowing, at the same time, the achievement of the purposes of those who, either bound to legal duties or moved by solidaristic purposes, intend to allocate assets to that effect. One of those instruments is particularly significant for its flexibility and organizational aptitude. Several legal orders have enshrined, or strived to enshrine, the regulation of masses of assets with the purpose of satisfying the beneficiaries’ needs, allocating certain goods and their revenues to such goal, and subjecting the patrimonial complex to a specific regime. The present essay starts with the identification of the guidelines that can influence the way these patrimonial masses are conceived. To this effect, it analyses the “accompanied adult” regime, although only focusing on patrimonial issues. Afterwards, it considers other private instruments, provided by the Portuguese legal order, prone to achieving similar results, in order to highlight the potential of functionalized patrimonial masses. This is followed by the study of other foreign legal experiences. These experiences, even if structurally different and with diverse legal regimes, are functionally oriented to solve the same social and juridic problem; fundamentally, they rely on the functionalization of assets to fulfil a common end. Finally, this study aims to problematize the structure and regime of such a patrimony, in the light of Portuguese Law, addressing several issues posed by such a mechanism. It provides an overview on the potential and the advantages of this instrument and draws the outline of a functionalized patrimony to the benefit of people with special needs, in line with the Portuguese legal regime.

Date of Award	23 Jan 2023
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Rita Xavier (Supervisor)