The purpose of the special procedure for authorizing the practice of acts is to safeguard the interests of incapacitated persons (which will be the case of someone who, given their physical and cognitive state of health, is unable to live an autonomous and independent life), in relation to acts carried out by their representatives (or accompanying persons), namely those that may affect their assets (which will be the case of the sale of a property).
ARTICLE PUBLISHED BY PORTUGUESE TIMES, CORREIO DOS AÇORES, VOZ DE PORTUGAL (MONTREAL) AND CORREIO DA MANHÃ (CANADA) – JUNE 05, 2024
It is up to the court to assess the repercussions of the act on the incapacitated person’s interests, taking into account the specific nature, shape and consequences of the act in question.
The accompanying person does not act in their own name, but as a representative of the person they are accompanying, seeking to act in the way they believe is best for the latter. However, given the conflicts of interest that can result from a companion’s actions not being subject to any external control, it is up to the court to assess whether the act in question does not offend the interests of the incapacitated person, and whether it complies with them, as we will see below.
In a process of voluntary jurisdiction, regulated in article 1410 of the Code of Civil Procedure, the courts have been judging according to criteria of convenience and opportunity, not sticking to the letter of the law. In other words, they assess the acts that underlie the authorization requested, whether they are in line with the interests of the person accompanied, whether it is opportune and convenient for them.
Thus, when a request is made for authorization for a judicial sale, in order for the accompanying person to represent the person accompanied in this legal transaction (in the granting of the public deed of purchase and sale), all the essential elements of the deal must be included with the initial petition, namely the indication of the value of the projected purchase and sale, its correspondence to the real and market value of the property, the agreement of the other co-owners (if they are not the sole owner of the property to be sold), and witnesses must also be listed to be heard by the Court, with a view to the proper decision of the case.
Once the action has been received, the incapacitated person’s next of kin and the Public Prosecutor’s Office are summoned to contest the claim. The decision takes into account all the factors brought to bear on the case, but above all the interests of the person accompanied. For example, it would be manifestly disproportionate for an accompanying person to have real estate and not have enough money to cover the average costs that their state of health requires (for example, the usual daily medication, occupational activities, etc.) and also to cover any unforeseen costs or an increase in the costs corresponding to their day-to-day life.
Thus, the Court, based on the real interests of the incapacitated person, namely – obtaining sufficient income to support their expenses, being the holder of a savings account, intended to provide for any need that may arise in the future in terms of well-being, comfort and state of health – has ruled in favor of requests to authorize the sale, authorizing the accompanying person to represent the person accompanied in the public deed of sale. However, the companion is obliged to deposit the proceeds of the sale in a bank account to be opened specifically for this purpose, which must be co-titled by him and his companion.
More recently, there have been rulings determining the obligation to attach a current bank account statement to the special authorization process each year, with a view to safeguarding the management of funds belonging to the incapacitated person.
Judith Teodoro,
Lawyer
