Preamble
SECTION 1 INTERDICTION DUE TO DEMENTIA, OR DUE TO DEAF-DUMBNESS Article 944 – Requisites of initial petition for an action of interdiction for dementia - The initial petition for interdiction founded on mental anomaly, after pleading the locus standi of the applicant, shall specify the facts that reveal the psycopathy and the partial or total incapacity of
the interdict to govern his person and administer his assets and shall indicate the persons, who according to law shall constitute the family council and exercise the tutelage. oArticles 314, 318 and 320 of Portuguese Civil Code. oArticles 944-958 – Special proceedings – Interdiction due to mental unsoundness: Covered by Mental Health Act 1987, earlier the Lunacy Act 1912. Article 945 – Publication. Annulment of acts - Upon receipt of the petition, two public notices shall be affixed, one on the door of the court and the other on the door of the village authority of the domicile of the opponent, in which name of the latter and the object of the action shall be disclosed on the same terms, a notice in the newspaper of the seat of the Judicial division or there being none, in a newspaper of the locality closest to the seat of the Judicial division shall be published. If the interdiction is finally ordered the acts performed by the defendant from the date of the publication of the public notice and those that are included within the limits of the prohibition, shall be annulled in the same petition for interdiction it being sufficient to show that they have caused prejudice to the interdicted. The petition being rejected or the action being dismissed, on merits, such notice of the dismissal shall be published by way of notice affixed at the same places and on the same newspaper. § Sole Paragraph: The advocate for the respondent in the proceedings may, by his own initiative or upon the application of any of the interested parties, cause the appointment of a provisional tutor, who may perform on behalf of the respondent, the acts which cannot be deferred. The provisional tutor shall exercise his functions until the appointment of the permanent tutor or until the prayer of the interdiction is finally rejected. Article 334 and 335 of the Portuguese Civil Code.
Article 946 – Notice to respondent in case of partial incapacity - When the interdiction is
applied for on the ground of partial incapacity, the opponent shall be summoned within 5 days to appoint an advocate to represent him in all stages of the proceedings. The advocate so appointed shall give his say as regards the locus standi of the applicant and the constitution of the family council. If no advocate is appointed, the applicant shall be represented by the Public Ministry, or he being the applicant, by an advocate appointed by the judge; and the file shall be entrusted to each of
them for 3 days for examination, to give his say as regards the two points mentioned in the first part of this article. § Sole Paragraph: When the opponent appoints an advocate, the Public Ministry, if it is not the applicant, shall render assistance to the opponent like an accessory party. The opponent, if he does not immediately appoint an advocate, is not debarred from appointing one, at any stage. As soon as an advocate is appointed, the representation of the appointed defence advocate ceases and if the representation has been made by the Public Ministry, it shall intervene as an accessory party.
Article 947 – Defence of respondent when incapacity is total - When total incapacity is
pleaded the service of the summons prescribed in the preceding article shall not take place, and the file shall immediately be made available for study to the Public Ministry, or to the assigned advocate for the purposes foreseen in the same article. But if the interdicted appoints advocate as attorney on record, after the filing of the proceedings, provisions of the last part of the sole paragraph of the preceding article shall be observed. If the opponent does not issue power of attorney, any of the succeeding relation of the opponent may appoint a counsel for him, who shall have the same power of representation, as if issued by the opponent himself; the payment of fees shall, however, be of the responsibility of the person who appoints in case the interdiction is allowed.
Article 948 – Appointment and summoning of family council - Once the locus of the applicant is satisfied, the judge shall appoint the family council and convene it to express its opinion as regards the relief prayed and its grounds. The members of the family council shall declare all that they know and which may be useful to ascertain the mental state of the respondent. For the meeting of the council, the applicant and the advocate for the respondent shall be notified and may be heard and make observations as they deem fit. The respondent may attend the session along with his counsel.
Article 949 – Reasons to reject petition - If the opinion of the council is contrary to the
applicant, the applicant shall seek examination of the opponent and also the sanity hearing of the opponent failing which the petition is liable to be dismissed.
The petition shall be also dismissed if the opinion of the council is confirmed in the examination of the opponent and sanity hearing. Article 950 – Questioning of the respondent and examination by experts - If the opinion of the council is favourable to the applicant, the court shall appoint two doctors specialized in psychiatry, when they are within the area of the Judicial Division, and this shall be followed by the interrogation and hearing of the opponent. The interrogation shall be done by the judge, with the assistance of the applicant, the representative of the opponent and the two doctors, and any of them may ask specific questions to the opponent, and the questions as well as the answers and whatever may have bearing on the determination of the mental state of the opponent, shall be recorded in the file with greatest fidelity. The sanity hearing by the doctors shall follow immediately after the questioning of the opponent is over. If the experts immediately arrive at their conclusion, the conclusions shall be recorded in the file in the records. If that is not possible, time shall be fixed for the submission of the report, continuing the examination at the place which the experts deem fit. The experts are permitted to take steps and conduct enquiries as they deem fit and may hear persons who are able to provide clarifications in respect of the behaviour of the opponent and in hereditary deficiencies. The doctors shall declare in the report, investigations done by them and the conclusions there from, and may record the information which they obtained, indicating the persons who furnished it. If they conclude that interdiction is needed they shall specify to the extent possible, the kind of mental condition and the extent of the incapacity, the probable date when it started, the precautionary measures and the means of treatment which they propose. If they do not arrive at a definite conclusion as regards to the capacity or incapacity of the opponent, the applicant who has applied for the interdiction shall be heard. He may apply either that, at his cost, the respondent be admitted in a specialty clinic for his examination to be conducted by the respective head, within a period of one month or that the steps prescribed in the article 953 be followed. § Sole Paragraph: Provisions of this article are applicable to the case where the opinion of the
council is contrary to the applicant and the latter proposes that questioning or hearing of the respondent be proceeded with. Article 951 – Immediate Interdiction Order - If the interrogation and the examination confirm the opinion of the council that is favourable to the applicant, the order for interdiction shall be immediately passed. Article 952 – Provisional interdiction - If the examination confirms the opinion of the council that is favourable to the applicant but the interrogation does not disclose mental anomaly, provisional interdiction shall be ordered, and notice shall be served on the opponent to contest within a period of 10 days, allowing the examination of the file by the advocate. The interdiction shall become definitive if there is no contest. There being contest, the terms of ordinary proceedings shall be followed. § 1: If the opponent has already been summoned or if he could not be summoned on account of total interdiction, his advocate/ attorney shall be notified to contest. § 2: The provisions of the ordinary suit relating to first examination shall be applicable to any examination of the mental state of the opponent. Article 953 – Steps in the ordinary proceedings - There being difference between the opinion of the council and the one resulting from the investigation, the provisions contained in the preceding article shall be observed with the following modifications:- 1)No order of the provisional interdiction shall be passed; 2)The matter shall proceed, although there is no contest, it being incumbent on the petitioner to prove the facts pleaded. § Sole Paragraph: What is provided in this article is applicable to the case where one of the experts concludes the opponent as fit and the other that he is unfit, whatever might be the opinion of the council. Article 954 – Contents of the Interdiction Order - The judgment which orders the interdiction, provisional or definitive shall fix the extent and the limits of the guardianship in the case of partial interdiction, shall fix, if possible, the probable date of the commencement of the
incapacity, shall appoint a guardian to the interdicted or convene the family council to this effect, when it falls within its competence shall always convene the council for appointment of the pro- guardian. If the interdiction is allowed in the appeal, the appointment of the guardian and the pro-guardian shall be done at the first instance when the file is remitted back. Article 320 and 330 of the Civil Code. Article 955 – Appeal - An appeal lies from the order of permanent interdiction or provisional interdiction which, due to lack of contest, immediately converts it into permanent. The applicant may also appeal as regards the extent and the limits of the incapacity. § 1: The guardian appointed may intervene in the appeal as assistant. § 2: The period to prefer appeal, in the case of provisional interdiction converted into permanent, shall start from the day the defence could be presented. § 3: The appeal shall not stay the operation of the order.
Article 956 – Sealing and listing of assets - Once the judgment directing interdiction has
becomes res judicata sealing and listing of the assets of the interdicted shall take place, if the interdiction is general and cases foreseen in situations envisaged in article 324 of the Civil Code. Scaling and listing of the properties may also take place and the enrolment of the interdiction is ordered; but the application shall not be granted without satisfying the existence of prima facie, bonafide in the application and case of irreparable 1055. See also Article 431, Paragraph 2 of this Code. Article 957 – Prosecution of proceedings even after death of opponent - Upon the death of the opponent in the course of the proceedings but after the investigation and sanity hearing referred to in article 950, the applicant may demand that the matter shall proceed to verify whether there was a case of alleged incapacity and in the affirmative since when it existed. In such case there is room to entertain any application to bring on record the heirs of the opponent, who shall continue to be represented in the suit by the advocate. The persons, who have interest in sustaining the validity of the acts performed by the opponent, may intervene as principal parties.
Article 958 – Procedure for lifting the interdiction - The interdicted person may apply to put an end to the interdiction, on the ground that the cause has ceased to exist. Upon the application being brought on record, the council of the family shall be called upon to give its opinion, with the assistance of the Public Ministry, of the interdicted person, of his
guardian and of the applicant for interdiction. The guardian shall give to the council the
information and the clarifications that have been asked from him, This shall follow the examination of the interdicted by 2 physicians. When the opinion of the council and the opinions of the experts are concurrent, the same shall be approved immediately, either dismissing the application or vacating the interdiction; if there is difference between the opinion of the council and the result of the examination, the steps of the ordinary suit shall be followed, and the applicant for the interdiction, and in his absence, the Public Ministry, and the presumed heirs of the interdicted shall be notified to contest. § Sole Paragraph: The lack of contest shall not dispense the applicant from proving his locus standi. Article 959 – Applicability to interdiction of deaf-dumbness - What is provided in the preceding articles is applicable to the interdiction on account of deaf-dumbness with the necessary adaptations. Article 337 of the Civil Code. SECTION II INTERDICTION ON ACCOUNT OF PRODIGALITY Article 960 – Procedure for interdiction for prodigality - The initial petition for the interdiction on account of prodigality must satisfy the requirements of article 944, with required modifications due to the special nature of such incapacity. When the application is filed and notices are issued, in terms of article 945, the opponent shall be summoned, to give his say, within 5 days, as regards the locus standi of the applicant and as to the constitution of the family council. Thereafter, the council shall be appointed and convened to give its say. The opponent shall be notified to be present for the meetings of the council and may by himself or through his advocate, justify the acts of the prodigality that are attributed to him.
If the council gives opinion favourable to the applicant, confirming all or some of the facts that are pleaded, provisional interdiction shall immediately be granted, if it is found that there exists sufficient ground to grant the same. Independent of the provisional interdiction being granted or not, the opponent shall soon be notified on to contest the application within a period of 10 days, and thereafter without further pleading, the steps of an ordinary suit shall be followed. There being no contest, permanent interdiction shall soon be granted or the provisional interdiction shall be converted into permanent interdiction. If the opinion of the council is contrary to that of the applicant, the opponent shall, in the same manner be notified to contest, and the provision of the preceding paragraph shall be observed, but the lack of contest shall not amount to the admission of the facts pleaded. § Sole Paragraph: What is provided in the second and third paragraphs of the Article 945 and in the Article 956 is applicable to such applications; and also, as regards the appointment of the curator and the extent and limits of curatorship, the provision contained in the sole paragraph to article 945 and 954 shall apply. Article 961 – Lifting of interdiction - If the interdicted person applies in accordance with article 352 of the Civil Code and its sole paragraph for vacating of the interdiction, upon the application being brought on record, the family council shall be called upon to give its opinion in the presence of the interdicted persons, his curator and the applicant for interdiction. Thereafter, the applicant for interdiction, and in his absence, the Public Ministry, and the presumed heirs of the interdicted shall be notified to contest the application. If the opinion of the council is favorable to the applicant and there is no contest, the interdiction shall be immediately vacated. If the opinion is contrary, whether or not there is contest, the steps of ordinary suit shall be followed without further pleadings. SECTION III RESTRAINT ON PARENTAL POWER OR OF GUARDIANSHIP FUNCTIONS Article 962 – Pleadings in a petition for restraining power of parent or guardian - In the petition for partial or total restraint of the paternal power or guardianship, the defendant shall be
summoned to contest within a period of 10 days. With the petition and defence, the parties shall file the list of witnesses and apply for leading any other evidence. § 1: Not more than 3 witnesses may be allowed examined for one fact and their total number for each party shall not exceed 10 for the main petition and 5 for the preventive or incidental proceedings. § 2: The witnesses residing outside the Judicial Division which the party does not volunteer to produce shall be examined only if the judge finds them indispensable. Article 141 and Article 161 of the Civil Code, Decree dated 27/05/1911 and complementary diplomas. Article 963 – Curative order - Upon presenting of the defence or at the end of the period, within which it can be filed, an order shall be passed within 10 days for the following:
| 1. | Taking cognizance of the nullities and the locus of the parties; |
|---|---|
| 2. | Decide any other questions even though on the merits of the case, provided the material before |
it enables the court to pass a conscientious decision. Article 964 – Hearing of arguments and judgement - If there are no preliminary objections, the steps that have to be taken before the trial and which the court finds necessary shall take place, and it shall always be mandatory to the judge to enquire the moral and economic positions of the parties, the facts pleaded by the party and everything else which is found useful to know to clear the position of the parties. This shall be followed by the trial in the following manner:- a) The parties being present by themselves or otherwise represented, the judge shall enquire so as to find out whether the matter can be settled; b) If he does not succeed in conciliation, he shall proceed for examination of the parties when applied for, and thereafter to the examination of the witnesses; c) At the end of the examination, the curator of the minors and the advocates shall be heard and each one of them may use the opportunity only once and for a time not exceeding half an hour. § Sole Paragraph: The hearing may be adjourned only once and on account of justified absence of any of the parties or of the witness which the party does not desire to drop.
Article 965 – Judgement - The final judgment shall be passed within a period of 20 days and the court shall direct to what extent restraint of the powers has been imposed and fixing the maintenance due to the minors by exercising discretion judiciously and taking into consideration all the circumstances. § Sole Paragraph: If the restraint is put by the court, the council of the family shall be called upon to appoint the guardian. Article 966 – Appeal - From the final judgment, appeal from judgment lies to the High Court. The appeal may or may not have the effect of staying the operation of the order, as the court may direct. § Sole Paragraph: The provisions contained in this article are equally applicable to appeal from order referred to under article 963, when such order puts an end to the proceedings.
Article 967 – Incidents - The substitution, recusal, exclusion and removal of the guardian
appointed by the tutelage shall be conducted as incidental proceeding and dependant on the application for restraint on powers. § 1: The substitution shall take place in the case of death or when guardian is disabled from exercising tutelage. In the first case, the substitution shall be applied by the curator of the minors or by parents, friends or neighbours of the minor immediately producing on record the death certificate; in the second case, the substitution shall be applied by the guardian. § 2: The excuse may be applied by the guardian, with the specific indication of the grounds for an inquiry of which necessary steps shall be taken. § 3: The exclusion and removal may be applied by the persons who may apply for the substitution in the case of death, immediately producing the proof on record. Article 968 – Suspension of power of parent or guardian and deposit of minor - As an act preparatory or incidental to the application of restrain of the parental control or on guardianship, the suspension of the power and the deposit of the minor may be immediately ordered, if the summary inquiry shows that the father or the guardian is manifestly incapable either physically or morally, to take care of the son or of the pupil. These steps lapse if the application for inhibition is not filed within 15 days or if, due to the
negligence of the plaintiff, the proceedings are kept pending for more than 30 days. § 1 : The deposit shall take place in the house of a suitable family, preference being given to the relations bound to provide maintenance; such course being not possible, the minor shall be placed in the custody in a boarding school or institute of beneficence. Provisionally, pension which the parents or the tutor are directed to pay for the sustenance and education of the minor, shall be fixed immediately. § 2: The custody of the minor shall be made by the means of a record that shall specify the conditions of the deposit. Article 969 – Lifting of inhibition - The vacating of the inhibition shall be applied before the tutelage and shall be processed by way of appendage to the file of inhibition. Such prayer may be made only upon passage of 3 years from the order of inhibition or the decision which has rejected the previous prayer. Upon the guardian and the curator of the minors being notified to contest within the period of 10 days, the petition shall follow the steps prescribed for the inhibition.