THE OPPORTUNITY TO AMEND THE REGULATIONS ON MEASURES FOR THE PROTECTION OF PERSONS WITHOUT DISCERNMENT
THE OPPORTUNITY TO AMEND THE REGULATIONS ON MEASURES FOR THE PROTECTION OF PERSONS WITHOUT DISCERNMENT

Summary/Abstract: The context related to the need for real protection of persons with mental disabilities was generated by an interpretation given by the decision of the Constitutional Court no. 601/2020. The consequence generated by this assessment of the constitutional judge led to the radical modification of the texts in the field, adopting in this respect the law nr. 140/2022. The generous principles arising from that piece of legislation regarding the exercise of civil rights by persons who have a limited capacity to discern do not have a judicious reflection in practice as well. If the good practices in this field had some limits until the moment of the appearance of the interpretation given to the constitutional litigation, after this moment the judicial proceedings were suspended, and at this moment they determine questionable solutions. Moreover, the administration of justice cannot be classified as a support for the litigants in these situations, in certain cases the so-called right turning into a real chore for the one with limits of discernment and implicitly for the members of his family who try to replace him in terms of exercising the prerogatives arising from the capacity to exercise. It seems to me that it is necessary to re-establish the modalities of State intervention in this regard, both administratively and judicially. The limits of restricting the exercise of a right must be proportionate to that reason which determines that intervention, but the right of assessment should be a subjective one, the assessment having to be broader for the magistrate and not an objective one, established under rigid conditions such as those now identified.

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