Civil liability of impaired, non-handicapped adults and of their de facto guardians for damages caused to third parties

Abstract

De facto guardianship can be defined as a situation in which one person takes it upon him or herself to care for another who needs protection, without administratively or legally intervening and at the borderline of the existence of a legal duty. Persons submitted to de facto guardianship many times are adults in dependency situations who lack material and emotional conditions and are family members without
being relatives or who, due to their mental or  intellectual condition, may be impaired, but in fact are not. We can say that there are three forms of protection and promotion of an impaired person’s fundamental rights with a mental deficiency: a) curating; b) supported decision making; c) and de facto guardianship. In spite of the first two existing in legal models in Brazilian civil law, de facto guardianship has arisen as a tertium genus, consisting in immediate action over adult persons whose capacity has
not been legally altered, rather, theoretically, should have been curated, as they are in a situation of the absence of self-governance or in need of protection due to limitations in their willful faculties, placing them in situations of risk and without having been submitted to the supported decision making process. Due to the lack of provision in the Civil Code, it is important to question the possibility of personal damage liability
against an impaired (but not legally impeded) adult person being held responsible for damages against third parties, as well as against the person who exercises de facto guardianship over that person. The issue has become more critical with the aging population demographics in Brazil and consequent increase in chronic, degenerative and incapacitating illnesses.