PORTUGAL Law and Practice Contributed by: Miguel Durham Agrellos, Paulo da Rocha Pichel and Ricardo Pereira Amaro, Durham Agrellos
8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms The laws protecting vulnerable adults in Portugal were profoundly revised in 2018. The new regime is characterised by the need to respect the individual’s autonomy as much as pos - sible and, therefore, the protective measures applied by the court should be specifically designed for each individual in accordance with that individual’s wishes and disabilities. The powers of the guardian will be specifically estab - lished by the court and limited to what is strictly nec - essary to guarantee the vulnerable adult’s safety and, as far as possible, their autonomy. Some management decisions, such as the sale of property, depend on court approval and the guardian must show account - ability when requested by the court and on the termi - nation of their guardianship. The protective measures applied must be periodically revised. In addition, the law provides an incapacity mandate which allows the individual to anticipate the selection of the person or persons in charge of their assistance The guardian must always be appointed by the court. In any case, the court must consider (where possible) the wishes of the minor or vulnerable adult. 8.3 Planning for Incapacity General instruments must be used to meet any par - ticular needs of the person with disabilities. Such instruments include, among others, power of attor - ney, insurance instruments, appointment of trustee or fideicomisario, or other person responsible for the administration of the person with disabilities. 8.4 Elder Law From a financial point of view, different alternatives are considered and sometimes combined when individu - als prepare financially for their retirement: • pension funds; in personal and financial matters. 8.2 Appointment of a Guardian
• insurance policies; or • constitution of surface rights or usufruct.
In addition, Portuguese law recognises advanced healthcare directives or mandates, in order to ensure that the correct medical actions are taken in case of illness or incapacity. 9. Planning for Non-Traditional Families 9.1 Children Children born out of wedlock and adopted children cannot be discriminated against for succession pur - poses. They are forced heirs. Artificial insemination is permitted to infertile married (or under domestic partnership) different-sex couples and to any woman or female couple, regardless of their fertility. Portugal recognises surrogacy arrangements only if a woman’s medical condition precludes her from getting pregnant naturally. The process must be authorised and supervised by the National Medically Assisted Procreation Council and must be free of any charge for the intended parents (except for medical expenses). 9.2 Same-Sex Marriage Portugal recognises same-sex marriage and domestic partnerships ( uniões de facto ). 9.3 Cohabitation and Unmarried Couples In general, there are no specific tax or succession rules applicable to couples who are neither married nor under domestic partnership. However, from a tax standpoint, it should be noted that only married couples and couples under domes - tic partnerships may opt for joint taxation for PIT pur - poses. From a succession standpoint, it should be noted that only married persons qualify as legal heirs, which is not the case for partners in other types of relationships.
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