REFORM OF THE SYSTEM FOR THE PROTECTION OF ADULTS. SPECIAL GUARDIANSHIP
REFORM OF THE SYSTEM FOR THE PROTECTION OF ADULTS. SPECIAL GUARDIANSHIP

Summary/Abstract: The existence or non-existence of discernment is taken into account by the legislator when it divides people into two categories: those who have legal capacity to exercise and can therefore conclude civil legal acts on their own and those who do not have the legal capacity to exercise, which is why they must be put under the protection of other people, which are to represent them at the conclusion of acts. The second category includes minors and adults who lack discernment because of mental deficiencies.If in the case of minors the Civil Code takes into account the fact that the forming of discernment is an evolutionary process and acknowledges a limited capacity to exercise discernment to those who have reached the age of 14, thus allowing them to conclude certain legal acts on their own, when it comes to adults, it is much more rigid. For adults, there is only one protection measure which deprives them of the capacity to exercise and puts them under the protection of a guardian, who will represent them at the conclusion of civil legal acts, respectively the judicial interdiction. According to the rules in force, the adult with mental deficiencies either does not have discernment and is placed under judicial interdiction, or has discernment, so it does not require the establishment of a protection measure.This nuanced way of dealing with the matter is contrary to the provisions of the UN Convention on the Rights of Persons with Disabilities and was declared unconstitutional by the Romanian Constitutional Court. The reaction of the legislator took the form of the development of a draft law on protection measures for people with intellectual and psychosocial disabilities, which takes into account the degree of impairment of the discretion of adults in need of protection and the need to allow them, in certain conditions, to participate directly in civilian life.The main provisions of this draft refer to the setting up of two new measures for the protection of adults, namely special guardianship, which will replace judicial interdiction and judicial counselling.

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