In Portugal, the Convention has been in force since 1 August 2011.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The Portuguese State is bound by the convention adopted in The Hague on 19 October 1996, approved by Decree No 52/2008 of 13 November, which represents conventional international law applied to national law through Article 8(2) of the Portuguese Constitution, with the former having prevalence over national law.
Under this convention (Art. 16, 17) the applicable law is the law of the Court of the minor’s area of residence that is competent to decide on his/her person, property and also in matters of representation.

For matters not regulated by the Hague Convention, solutions must be found under the general Portuguese rules, which are the Civil Code and subsidiary, the Decree Law 314/78 of 27/10. Article 30 of the CC states that the law of the State of the nationality of the minor shall be applied.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

The Court of the minor’s area of residence is competent to decide on his/her person, property and in matters of representation.

Council Regulation (EC) No 2201/2003, of 27 November 2003, concerning “jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility”, is applied directly and came into force on 1 August 2004. Its source derived from EU law. Pursuant to Article 8(4) of the Constitution, said regulation has prevalence over national law.

According to Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in the matters of custody and legal representation of a minor, the Portuguese State courts have jurisdiction if the child normally resides in Portugal (Art. 8).

For the cases where European Regulation does not apply, the Portuguese State is bound by the convention adopted in The Hague on 19 October 1996, approved by Decree No 52/2008 of 13 November, which represents conventional international law applied to national law through Article 8(2) of the Portuguese Constitution, with the former having prevalence over national law.

Other cases not directly regulated by the previous regulations must find the answers in the application of the Civil Code.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

The same answer as for the previous point.

In Portugal, in accordance with Article 122 Civil Code, minors are persons who have not reached the age of 18. Thus, 18 is the age of majority.

Therefore, up to that moment, minors generally do not have legal capacity. Certainly, they are able to hold any kind of rights but they cannot exercise them by themselves.       

However, in Portugal, the age to enter into marriage is 16, which is different from the age of majority. Children can only be emancipated by marriage, at the age of 16.

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes. In Portugal, minors over 16 have reached the possibility to get married, and consequently, emancipated. Thus, even before reaching the age of majority, the same result is attained with emancipation (Art. 132 CC).

Emancipation entitles the minor to govern his/her own person and property, as if he/she has reached the age of majority. In fact, the effects of emancipation through marriage are equivalent to those obtained with the age of majority.

Last wills and testaments may be made by all those who are not explicitly forbidden by law from doing so. Thus, only a minor who has been emancipated by marriage has legal capacity to dispose by testament.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

Minors who have reached the age at which they can legally marry shall not be married without the consent of their parents. In fact, emancipation through marriage shall only produce its full effects under the law if the marriage was duly authorised. Otherwise, the minor will continue to be considered a minor with regard to the administration of his/her property and assets up until the age of his/her majority (Art. 1649 CC).

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

There are some situations minors may enter into alone (Art. 127 CC). For example, the parents shall not have the right to administer the property acquired by the children through their own work and industry, arts or liberal professions and all acts and transactions of minor importance.

If the minor is not emancipated by marriage at 16, he/she is not able to make a last will before he/she reaches the age of 18.

The Portuguese Civil Code allows the minor to decide by him/herself in some particular situations (Art. 127 CC). For example, the minor is authorised to purchase some trivial, inexpensive things, which he/she is able to understand well when the transactions are of minor importance (some examples: purchase cinema tickets, school books, toys, etc.).

In other situations, aged over 16, the minor can be authorised to have a profession, such as an actor, singer, painter or many others. In all similar cases, in which the property had been acquired by the children through their own work and industry, arts or liberal professions, the parents shall have not the right to administer.

The legal incapacity of minors is overcome by parental authority, and in its absence, subsidiarity, by guardianship (Art. 124 CC).

In case of absence or of another impediment of one parent, the other replaces him/her.

In case of litigation (e.g. dissolution of marriage), the court may appoint only one parent to direct the person and property of the minor children.

In case of absence or any kind of impediment of both parents, parental authority must be replaced by guardianship. Parents or guardians shall act as legal representatives.

In some cases, it is possible to appoint administrators whom shall coexist and act jointly with the legal representatives.

In accordance with Article 1921 CC, if parental authority cannot be exercised due to the parents’ absence or general impediment, the minor’s incapacity is overcome through guardianship. Thus, parental authority is replaced by guardianship.

The legal guardianship is carried out by a guardian appointed by the minor’s court (Art. 1923 CC). However, the family council shall play an important role in the judge’s decision (Art. 1931).

The Portuguese civil code provides for a second possibility to appoint a guardian: testamentary guardianship (Art. 1928, No 2). In this particular article, the guardianship is appointed in a last will (an authentic instrument is also possible) and can be instituted by the minor’s parents. However, testamentary guardianship can only be legally held by one parent in the event that the other parent is absent or impeded at the moment when the former dies.

Guardianship is carried out by a single guardian (Art. 1929). In the event that the parents have appointed several persons, the court must name only one to exercise guardianship. However, it is possible for one or more administrators named for different purposes to coexist until the minor reaches majority.

3.1 What is the scope of the right of custody?

It is for the parents to govern the person of their minor children, to protect them and to manage their property.

According to Articles 1878 and 1879, parental authority includes: the right to custody, which encompasses several duties such as vigilance, maintenance or keep, nourishment, clothing and housing, education, instruction and correction.

Parental authority also includes the right to represent children and the right to exercise the general administration of a minor’s property and assets within the limitations laid down by law.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

If parental authority cannot be exercised by both parents, due to one parent’s absence or impediment (e.g. the inhibition of parental authority), the other parent shall, automatically, act alone. He/she does not need a court´s decision to exercise sole custody (Art. 1903).

However, if both parents are unable to exercise custody, the minor’s incapacity is overcome through guardianship and in these situations, the appointment of the minor’s guardian is a judicial competence (Art. 1923), and the court could appoint one or more administrators, whom shall act together.

As it has already been explained in previous points, parental authority is replaced by guardianship in the absence or impediment of the parents. For example in case of death or loss of legal capacity. However, it could also be ceased or suspended due to the incapacity of the parents decreed by a court of law, due to a temporary absence of the parents or due to a conviction of the parents implying a temporary interdiction in relation to that power (e.g. bad behaviour towards the children).

3.2.2 Is the competent authority free in its choice of a new custodian?

In several situations, the choice of guardian is proposed by the parents using the form of a will or simple authentic instrument.
In the silence of the parents, the appointment of the guardian derives from the law itself. The court must decide, in collaboration with the family Council.

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

Only one guardian must have custody (Art. 1929). However, the coexistence of one or more special administrators is possible to take care of a minor’s property (Art. 1969).

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

In general, parental authority is exercised by both parents, acting in common agreement. In litigation about matters of relevant importance, it is mandatory to apply to the court, asking for a decision in the minor’s interest. In some cases, the judge must listen to the child.

In real litigation (e.g. dissolution of the marriage), if the parents do not reach an agreement themselves, the judge decides which of the parents will carry on custody.

If the parents are not married, in general both have custody. However, if the parents are not living together, children must remain in the care of one of the parents, who must also exercise custody (Art. 1911). If the parents do not reach an agreement concerning the care of the minor, the court must decide which parent has custody.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No.

In Portugal, the general rule is that the person who carries on the right of custody also has the right of representation. However, sometimes an administrator could be attributed to the minor.

It is the same procedure as previously explained for guardianship. Specifically, the administrator can be named by the parents (Art. 1888; Art. 1928), by a donator (Art. 1968) or by a court decision (Art. 1922).

Several situations lead to the coexistence of one or more administrators. For instance, if the parents have been prohibited from governing the minor’s property, or if a person who, through a will, has left some assets to the minor and has appointed a special administrator for the said assets, until the minor reaches the age of majority.

Thus, parents or guardians may coexist with administrators, representing the minor and even acting separately.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

Please refer to point 3; the same procedures apply.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

The parents, the guardian or the administrators, when representing the minor, may not dispose of or sell real estate property, grant a mortgage or in any other way create obligations upon the property of the children. All these situations can only be carried out in case of urgent need or obvious benefit to the minor, and must always be supported by a court order.

The parents are also able to represent the minor drafting a will, though in very limited circumstances. In Portugal, this legal solution is known as “pupillary substitution”. In accordance with Article 2297 CC, the meaning of pupillary substitution is to prevent the property which the child receives from the testator from belonging to the persons that the testator does not want to benefit. This kind of testament finds its invalidity, automatically by law, when the minor reaches majority.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Generally the parents have the right to represent, and therefore to administer almost all the minor’s assets. However, the coexistence of an administrator for particular cases, appointed by court decision or determined by a third party, would be possible.
There are some other cases in which, some or both parents shall have not the right to administer; for instance, property acquired by children through their own work, arts or liberal profession (Art. 127 CC), or property donated or left to the children excluding the administration by the parents (Art. 1888 CC).

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

As stated in previous points, both parents hold parental authority, which should be exercised in common accord. In the absence of agreement in one sense, a court may decide issues of significant importance, always in accordance with the minor’s interests.

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
Both parents hold parental authority together. Please go back to previous points.
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?
No.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

As stated above, some transactions require a special authorisation supported, exclusively, by a court decision. This judicial competence does not belong to any other person or authority.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

In general, consent is not necessary for the acts of purchase or acquirements without any kind of duties or obligations.

In fact, the parents do not need a court order for acquire assets using means or capitals belonging to the child, since the assets or property are free from any charges, mortgages and do not bring the child under obligations of any kind.

On the contrary, the guardian (not the parents) needs judicial permission for several acts, for example, to acquire assets using the minors means, to decide what to do with money belonging to the minor, to withdraw the minor’s capital, to accept donations and legacies. In all these situations, the court must consult the family council.

Otherwise, these contracts could be annulled.

In other situations, the guardian is prohibited from acting (Art. 1937 – especially when the minor is him/herself party to the contract). The infringement of that article results in nullity.

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

If the parents carried out representation without having a previous authorisation from the court, the transaction could be annulled in the bequest, by the child at the age of majority, or by his/her heirs (Art. 1893 CC). However, this annulment may be reversed through subsequent court authorisation (Art. 1894 CC).

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

The parents are prohibited from acting in all kinds of transactions or contracts which possibly lead to conflicts of interest between the child, parents or family (Art. 1892); they must be supported by a previous judicial authorisation. Otherwise, all transactions conducted in infringement of Articles 1889 and 1893 are voidable in court.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

No.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

The legal representative may authorise a third party to act in very limited situations. For example, it is allowed to name a lawyer or a solicitor to represent the minor in a court procedure. It is also possible to appoint someone as a representative in acts of minor importance, such as, choosing the school or the club in which the minor will play sport. The legal form of the power of attorney depends on the nature of the act.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

The birth certificate is the document which is able to prove custody and/or representation. In fact, all decisions concerning custody and even representative rights (whenever is the case) must be demonstrated by the respective notes added to the birth certificate at the civil registry office. There is no other document that contains that proof, such as a passport or identity card.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

The main document is, generally, the certificate of the court decision. Even so, there must be reference to it by notes in the birth certificate, which contains all the up-to-date information.

6.1 What are the requirements for the formal validity of such a consent/permission/autorisation?

Parental authority is generally exercised by both parents, and in this particular situation they must act in common agreement (Art. 1901).

In situations of minor representation, all the persons who have the parental authority/custody must consent to the minor’s travel abroad with an express document with a legalised signature.

Part 1: Protective measures for adults with loss of capacity

In Portugal, in general, people over 18 years of age can exercise their rights personally and freely, fulfil their obligations and take care of their property, without needing the help of others.

However, there are citizens who, for reasons of health, disability or as a result of their behaviour (e.g. alcoholism, drug addiction, etc.), 

cannot exercise their rights, fulfil their duties or look after their property consciously and freely without the support or intervention of another person.

The "accompanied adults" scheme is specifically intended for the latter category, and its objective is to preserve the autonomy that the person still has and, as far as possible, to increase it. 

 In this sense, the court, after examining all the factors that that have been brought before it and with the help of medical information, decides which acts the person – the accompanied adult – can and must continue to perform freely and which, for his/her protection, must be performed by or with the help of another person – the assistant.   There are, however, certain acts that the assistant can only perform after obtaining the permission of the court.

Follow-up can be requested by the person or, with his/her permission, by his/her spouse or common-law partner or any surviving blood relative (e.g. parents, children, brothers, 

uncles). 

There are also situations in which the person, because of illness or frailty, despite the need for follow-up measures, is unwilling or unable to apply for them. In such situations, the court may decide without the person's authorisation, provided that it considers that there are grounds for not requiring such authorisation, or in cases where the court finds that the person is not able to provide his/her authorisation freely and knowingly.

The application can always be made by the Public Prosecution Department or by the spouse, de facto partner or any successive blood relative. One of these persons must go to the Public Prosecution Department or engage the services of a lawyer, and if it transpires that they cannot pay for these services, they may apply for legal aid from the social security services.

This is a new legal system – which must necessarily be decided by a judge – and will replace the previous prohibitions and disqualifications.

This new scheme came into force on 10 February 2019

Part 2: Possibilities to anticipate future loss of capacity

Any person of legal age may, in anticipation of any future need for support, make a contract – called a mandate or power of attorney – in a civil law notary's office in which he/she gives the other person the authorisation (the one they decide) to act on his/her behalf in the event that he/she needs such help in the future because they cannot act alone. This mandate can be cancelled (rendered ineffective) at any time. This contract is not intended to replace future support, but it is taken into account if adopted and can be used by the court, in whole or in part. Similarly, the expressed will of the person should be taken into account by the court as to who should carry out the duties of the assistant

Advance directives make it possible to give instructions or to name a trusted person to give them when the time comes in the event of a person no longer being able to express his/her will to accept or refuse medical treatment, for example following an accident or illness. The measures provided for in the advance directive cover only the doctor-patient relationship with regard to respecting the patient's wishes concerning the application of palliative treatments for pain,

the use of disproportionate and extraordinary treatments or the abusive and irrational prolongation of life support.