Legal Measures for Elderly Care

The latest data from the Ministry of Human Rights and Citizenship, released in June 2023, indicates a rise in reports of elderly abandonment. Between January and May 2023, there were about 20,000 records. While in the previous year, this number was 2,092 cases.

These are not just numbers; they represent abandoned and mistreated individuals in a country that is not solely comprised of young people. Following global trends, Brazil has an increasing number of adults and elderly individuals, who already make up 10.5% of the population aged 65 and older. The Ministry of Health has already warned that this number is expected to surpass that of young people aged zero to 14 years by 2030, which is very soon.

This introduction serves to remind us that during childhood, it is the legal duty of parents to care for, protect, and provide for their minor children. However, did you know that a similar concept applies to the care of elderly parents in situations of incapacity?

With aging, debilitating diseases often arise, which can affect cognition, mobility, and even speech. Additionally, the inability to work can lead to financial difficulties.

Therefore, when illness and age arrive, the family must decide what to do. Often, there is resistance to accepting that the elderly person needs help, resulting in a sad reality where the burden of care falls solely on one person. I am accustomed to seeing this in my office, and today, in addition to being a mother of three, I also care for my mother.

According to Brazilian legislation, there are several paths to follow to help protect and care for our elderly. They are:

Guardianship is a judicial measure aimed at protecting the rights of adults who, for some reason, cannot manage their own civil life. In the case of the elderly, the judge may appoint a guardian, who is the person responsible for their care. This definition must be included in a detailed report describing the motor, cognitive, and expressive difficulties, as well as the irreversibility of the condition.

Contrary to what many believe, the guardian has limited powers. One example of this is financial transactions. The judge will limit the amounts that can be withdrawn from the elderly person's bank account. Additionally, the guardian must account for expenses to the judge, and in the case of selling the assets of the ward, meaning the elderly person, it can only occur with judicial authorization. Therefore, forget the idea that a guardian has full powers.

For me, as a lawyer and mother, this is one of the most perverse aspects, when the elderly cannot sustain their basic needs with their retirement, such as food. I have seen this firsthand, and it was necessary to take legal action to request alimony from the children.

In these cases, all children are equally responsible for the situation that has been proven and presented to the judge. For this type of action, the elderly person must be capable or have a guardian to represent them in court.

It is a harsh reality, but one that must be faced to ensure the well-being of the elderly.

This measure is for those cases where the elderly person, although still capable of expressing their will, needs assistance in making decisions due to advanced age or mobility difficulties.

For this to be accepted by the judge, the elderly person must have full mental capacity but require support to solve everyday problems. In these cases, a lawyer is needed to draft an agreement, and the elderly person chooses two trusted individuals.

With the document in hand, a judicial request is made. It is important to note that this document has a validity period – to be defined by the parties – and needs to be renewed.

The supporters, as those who will be with the elderly person are called, must respect the will, rights, and interests of the supported individual, providing the necessary information to overcome vulnerabilities.

In this situation, the elderly person maintains their decision-making power and capacity to perform civil acts. In case of disagreement, the matter will be brought before the judge.

The purpose of this article is not only to inform but also to raise awareness about the importance of caring for our elderly. They need food, medicine, medical assistance, and also affection and attention. Remember that in a few years, you may find yourself in a position of needing help.

Share this information and help raise awareness among more people about the need for support and proper care for our loved ones in their old age.

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