Autonomia da vontade da pessoa idosa: uma abordagem sob a perspectiva da observância do mínimo essencial

Abstract

The distinctive legal issues concerning the elderly take on special importance in a national scenario where a vertiginous aging process of the population is taking place. Among the numerous violations of rights the elderly are subject to is the debasement of their individual freedom through the suppression of their right to choice. The research developed throughout this work aims to examine the possibility of limiting the right to individual freedom of a mentally healthy elderly, especially when the preservation of that freedom endangers rights of a higher order belonging to that same individual. The research methodology adopted is that of case study and bibliography research including, in the latter, an investigation into the doctrine, the laws and judicial decisions. The study presents a historical tracing of the recognition of the right to individual freedom and underscores its assertiveness in the Federal Constitution of 1988. It stresses that the right to freedom is not a right of an absolute nature; argues whether the individual is required to exercise a fundamental right; places autonomy as the focus of the right to individual freedom; emphasizes that senescence alone does not suffice to cause civil disability; analyzes the legislative changes that took place in 2015 regarding the protection of individual autonomy; gives prominence to the protection of the autonomy of the elderly in Brazilian law and international law; examines the feasibility of ensuring protection for the elderly, while protecting their autonomy; expounds on the limits of the District Attorney’s authority, when dealing with a mentally healthy elderly who is at risk; and carries on a case study in which the judiciary system recognizes that the freedom of a mentally healthy elderly should be preserved, even if that protection resulted in the death of such elderly person. As a result of the analysis of John Rawls’ index of primary goods and an investigation of those rights that make up the existential minimum, a new concept is outlined – the essential minimum –, made up of individual freedoms. It makes a distinction between the essential minimum and the essential core of the fundamental rights and describes the environment for the applicability of the new concept. In conclusion, it asserts the usefulness of adopting the essential minimum as a parameter for the resolution of cases involving the rights of only one individual, highlighting the relevance of its use in the protection of the autonomy of the elderly.