In recent days, a topic which, although far from new, remains poorly understood by much of the public, has once again returned to the media spotlight: the supported adult regime.
The judicial decision recognising Ricardo Salgado as a beneficiary of this legal status has once again brought into public discussion the intersection between health, dignity and justice.
Irrespective of the individual involved, it is important to refocus the debate on what is truly at stake: protecting the autonomy of those who, for medical, cognitive or other reasons (such as alcoholism, gambling addiction or drug dependency), are no longer capable of managing their lives independently and with the necessary clarity of judgment.
In Ricardo Salgado’s case, the court recognised that he suffers from a neurodegenerative disease (Alzheimer’s disease), resulting in severe impairment of his cognitive abilities. This led to the appointment of a supporter and to limitations being imposed on the exercise of certain legal acts.
The case generated controversy because it arose in the context of ongoing criminal proceedings, particularly those connected with Operação Marquês and the collapse of BES.
Some interpreted the measure as an attempt to avoid criminal liability. However, it is important to emphasise that the supported adult regime is civil in nature and does not, in itself, prevent criminal responsibility. Nor is it a mechanism applicable only to public figures.
Like Ricardo Salgado, there are many other individuals - sometimes even within our own families - who, due to health conditions, disability or their own conduct, find themselves unable to exercise their rights or fulfil their obligations.
And this is precisely where the supported adult regime becomes relevant.
What Is Really at Stake?
Consider Maria (a fictional name), aged 85, who was diagnosed with Alzheimer’s disease and, as a result, gradually lost the ability to orient herself in time and space, recognise loved ones or understand the value of money.
Or Pedro (also a fictional name), aged 55, who developed a gambling addiction, squandered the family savings at casinos and incurred significant debts placing the family assets at risk.
Or João (again, a fictional name), who followed a similar path as a result of alcohol dependency.
Or Isabel (fictional name), aged 40 and mother of two minor children, who suffered a serious car accident and, as a consequence, became severely physically and psychologically debilitated, unable to move around without assistance, care for her own hygiene or cook for herself and her children, spending most of her day bedridden.
Or José (fictional name), aged 35 and suffering from drug dependency, who decided to sell his car for a negligible amount and disposed of all the assets in his home in exchange for drugs - a ruinous administration of his assets to his own detriment.
These are just some examples, among many others, of individuals who, at a certain point in their lives, whether temporarily or permanently, cease to be capable of fully, personally and consciously managing themselves and/or their assets, thereby requiring assistance from third parties.
The Paradigm Shift Introduced by the Law
For many years, Portugal operated under the old legal concepts of interdiction and incapacitation - rigid measures which, aside from their stigmatising terminology, effectively deprived affected individuals of almost all legal capacity. These mechanisms were repealed by Law no. 49/2018 of 14 August, which introduced the supported adult regime.
Inspired by the United Nations Convention on the Rights of Persons with Disabilities (2006), ratified by Portugal, the new regime seeks to protect the autonomy and dignity of the individual, replacing a logic of substitution with one of support and assistance, always grounded in the principle of complementarity.
Only in the most serious cases may the Court now impose substitute measures - such as general representation, full administration of assets or the exercise of parental responsibilities.
In such situations, and always following a case-by-case assessment, the Court may limit the exercise of personal rights, such as marrying or entering into relationships akin to marriage, having children, recognising or adopting children, caring for and educating children, choosing a profession, travelling within Portugal or abroad, making a will or entering into ordinary legal transactions.
In less serious situations, the Court may legitimise a more limited intervention by the supporter, granting mere powers of assistance in decision-making, authorisation and/or special representation for the performance of specific acts.
The principal objective is not to “remove rights” from the individual, but rather to help them exercise those rights.
Today, where a person is no longer capable of managing their personal or financial affairs freely and knowingly, the law no longer presumes total incapacity. Instead, the system asks: in which specific areas does this person require assistance, and how can support be provided without removing more autonomy than strictly necessary?
Thus, for example, in the case of a person suffering from drug dependency, a measure concerning the administration of assets or the requirement for prior authorisation to perform certain acts may be justified.
By contrast, in the case of a person suffering from a degenerative mental illness, a measure of general representation may prove necessary.
The support measures are flexible and tailored to the degree of incapacity of the individual, ranging from occasional support to full representation. The decision is always made by a judge, based upon the real needs of the supported adult.
Supported adult proceedings constitute autonomous civil proceedings and must always be ordered by the Court.
An application may be made by the beneficiary themselves or, with the beneficiary’s authorisation, by a spouse, cohabiting partner or any relative entitled to succeed to the estate. The Public Prosecutor may also initiate proceedings independently of such authorisation.
In most cases, however, the individual concerned is not in a position to give free and informed consent. In such circumstances, proceedings may still be initiated together with a request for judicial dispensation of consent, which must be duly substantiated.
Within these judicial proceedings, one or more supporters are appointed, entrusted with functions determined according to the support measures applied.
The general rule - founded upon the dignity and autonomy of the adult - is that the beneficiary should choose the person they wish to appoint as supporter. However, once again, the beneficiary is not always in a condition to make such a choice, in which case the role shall fall upon the individual best suited to safeguard their interests.
The exercise of this role is naturally subject to judicial scrutiny in order to ensure that it serves the interests of the supported adult.
Likewise, the Court is responsible for reviewing and adapting the support measures over time, in accordance with the evolution of the individual’s circumstances.
My Perspective: Between the Theory of the Law and the Reality of Life
As a lawyer with experience in the fields of family and succession law, I have closely followed cases in which the supported adult regime has proven to be both a solution and a source of new family tensions.
Its application raises significant challenges, particularly where assets are involved, family relationships are fragile or the individual concerned still retains some degree of lucidity and resistance to outside intervention, despite no longer being capable of independently caring for themselves or their assets.
In my view, this is where one of the regime’s principal weaknesses lies: the difficult balance between the need for protection (often sought by family members) and respect for autonomy (of the beneficiary themselves).
Furthermore, distinguishing between a genuinely concerned relative and an anxious heir may also prove decisive at the moment of appointing a supporter.
Even so, the law seeks to prevent such abuses by assigning the judge the role of impartial guardian.
A Fair Measure, If Properly Applied
The idea that an adult may be assisted in making decisions - rather than replaced in their will - represents a civilisational advancement.
The supported adult continues to have a voice, dignity and rights.
The regime should be applied with caution and seriousness, but never with distrust.
The supported adult regime is the legal mechanism that responds to these difficult realities with both justice and humanity.
Being informed about this regime may be the first step towards protecting those we love most.
What if It Were You?
Did you know that the law provides for the possibility of, in anticipation of a future need for support measures, entering into a mandate for the management of your affairs, with or without powers of representation?
A mandate in anticipation of support measures - which may be amended or revoked by the principal at any time - is a legal instrument allowing an individual to designate, in advance, one or more trusted persons to act as their supporters should they, in the future, become incapable of exercising their rights and fulfilling their obligations personally, freely and consciously.
This mandate does not replace supported adult status, but rather anticipates and guides its application, since the Court will take this document into account when determining support measures and appointing the supporter, provided that it complies with the applicable legal limits.
The Court may terminate the mandate where it is reasonable to presume that the principal would have wished to revoke it.
If you are in this situation, or know someone who may require this type of support, speak to a lawyer or contact the Public Prosecutor’s Office.
The first step may make all the difference.
