Ocrotirea persoanelor cu dizabilități intelectuale și psihosociale prin mijloace de drept civil
Protection of persons with intellectual and psychosocial disabilities through civil law mechanisms

Summary/Abstract: Natural persons, as subjects of civil law, enjoy protection without discrimination; however, certain categories of natural persons, due to their age (too young or too advanced), mental or physical health, or other circumstances, require special protection from society. In this regard, Article 105 of the Civil Code provides: “Minors and those who, although capable, cannot manage their property or protect their interests properly due to old age, illness, or other reasons provided by law, are subject to special protection measures,” while Article 106 of the Civil Code stipulates that the protection of minors is ensured by their parents, through the establishment of guardianship, foster care, or other special protective measures expressly provided by law, and that the protection of adults occurs through judicial counselling, special guardianship, curatorship, or other measures provided by law. The need to combat discrimination and social exclusion, as well as the need to support social reintegration and active participation of persons with disabilities in civil life on an equal footing with others, determined the Romanian legislator to intervene and amend the Civil Code and other normative acts in accordance with Constitutional Court Decision No.Constitutional Court Decision No. 601/2020 concerning the unconstitutionality exception of Article 164 paragraph (1) of the Civil Code, which regulated judicial interdiction, adopting Law No. 140/2022 regarding certain protection measures for persons with intellectual and psychosocial disabilities and for the amendment and completion of certain normative acts. Essentially, the measures enacted through this normative act are subject to the principle of subsidiarity and were conceived as a gradual protection mechanism ensuring the intervention most suitable to the person’s needs. Subsidiarity is emphasized in Article 164 paragraphs (3) and (5) of the Civil Code (as amended by Article 7 point 22 of Law 140/2022), which stipulate that “judicial counselling may be instituted only if adequate protection cannot be ensured through the appointment of an assistant for the conclusion of legal acts” and that “special guardianship may be instituted only if adequate protection cannot be ensured through the appointment of an assistant or judicial counselling”. In the following, we will analyse these measures in light of the new legislative developments concerning the protection of persons with intellectual and psychosocial disabilities.

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