BRAZIL Law and Practice Contributed by: Daniel Zugman and Frederico Bastos, BVZ Advogados | Bastos, Bari, Vilela e Zugman
the ordinary management of the protected person’s assets are also subject to judicial approval. Against this background, family holding companies are the principal estate-planning mechanism for minors and individuals subject to curatorship. Rather than holding assets directly, families typically transfer them to a holding company and make lifetime gifts of the shares or quotas to future heirs. The principal objective is not only to accelerate succession, but also to establish governance rules reflecting the founder’s wishes, including who will manage the assets, how decisions will be made, restrictions on transfers of equity interests and the distribution of profits. This structure promotes the orderly administration of family wealth and reduces the need for future court interven - tion, while remaining subject to the statutory protec - tions applicable to minors and protected adults. 8.2 Appointment of a Guardian In Brazil, most minors are not subject to guardian - ship, as they remain under the parental authority ( poder familiar ) of their parents, who are automatically responsible for representing or assisting the child and administering the child’s assets without the need for a court appointment. Nevertheless, certain transactions involving the child’s assets –particularly the disposal or encumbrance of real estate and other acts exceed - ing ordinary administration – generally require prior judicial authorisation. Where parental authority cannot be exercised, a guard - ianship ( tutela ) may be established. Although parents may nominate a guardian by will or another legally recognised instrument, the appointment becomes effective only after confirmation by the court. In the absence of a valid nomination, the court appoints the guardian in accordance with the statutory order of preference and the child’s best interests. Once appointed, the guardian remains subject to ongoing judicial supervision and, as a general rule, oversight by the Public Prosecutor’s Office. Curatorship ( curatela ) is an exceptional measure applicable to individuals who are unable to validly express their will in relation to patrimonial and busi - ness matters. It may only be established through court proceedings, and the court determines its scope
according to the protected person’s needs, generally limiting it to financial and business matters. As with guardianship, the curator remains subject to ongo - ing judicial supervision, and significant transactions exceeding ordinary administration typically require prior court approval. 8.3 Planning for Incapacity Brazilian law does not recognise a durable power of attorney comparable to those available in many com - mon law jurisdictions, under which an attorney-in-fact continues to act after the principal loses legal capac - ity. Where an adult is no longer able to validly express his or her will in relation to patrimonial and business matters, representation will generally require a court- appointed curator. Curatorship is an exceptional measure and must be proportionate to the protected person’s needs. In practice, family holding companies are among the principal planning mechanisms for potential incapac - ity. Assets are transferred to the holding company dur - ing the founder’s lifetime, and its governance rules determine in advance who will manage the assets, how corporate decisions will be made, restrictions on transfers of ownership interests and the distribution of profits. As a result, the management of family wealth can continue with limited disruption even if one of the shareholders later becomes legally incapable. This planning is commonly complemented by other instruments. Advance healthcare directives allow indi - viduals to record their wishes regarding future medical treatment. Powers of attorney are also widely used to facilitate the management of assets and legal affairs while the principal retains legal capacity. However, they do not replace curatorship in cases of legal incapacity and are therefore generally used alongside corporate governance arrangements rather than as standalone incapacity-planning tools. 8.4 Elder Law Brazil has no dedicated legal regime specifically aimed at financial planning for longevity. In practice, preparation for longer lives is achieved through a com - bination of public social security, supplementary pen - sion plans, private investments and estate-planning structures.
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