Tendinţe noi în protecţia adulţilor vulnerabili. Reforma incapacităţii şi cerinţa discernământului
New trends in the protection of vulnerable adults. Incapacity reform and the requirement of discernment

Summary/Abstract: The Romanian legislator attempted a far-reaching reform in the matter of the protection of vulnerable adults, by adopting Law no. 140/2022 on the protection of people with intellectual and psychosocial disabilities. The problem is, however, that the new regulation apparently no longer declines itself as comprehensively as before in relation to the notion of discernment, so that it is not certain whether this concept still conditions in any way the regime of protective measures. The observation is also valid regarding the instrument of assistance granted in the competence of the notary public by the new normative act, as an instrument of support complementary to the actual protection instruments. Indeed, the applicable texts no longer rely on the lack of discernment or its vices, but merely require an adult in the need of support or protection because of deteriorated mental faculties or because of intellectual or psychosocial disabilities. This change of perspective somewhat also complicates the content of the protective measures, as the legal vocabulary cannot operate in this case with notions that suggest interference or restrictions. However, the applicable texts can be reinterpreted in a constructive manner, where they simply come to clarify that persons with impairments of mental capacities should not per se be targeted by capacity-restrictive measures, for the simple reason that they should not necessarily be considered to lack discernment. In the same vein, once the support or protection measures are in place, compliance with the related formalities should be sufficient for the validity of the concluded contracts, without the issue of discernment being relevant any longer.

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