Administration of assets. The power of parents in relation to the administration of the assets of their minor children is not absolute. On an exceptional basis, it is possible for the child to file an action for an accounting (ação de prestação de contas). This is so when the request is grounded in the suspicion of abuse of rights on the part of the parents. This understanding was expressed by the Third Panel of the Superior Court of Justice (STJ).
The STJ adjudicated the appeal that originated from a child’s request that his adoptive mother render an accounting of the period during which she administered the death pension. A benefit received from the time of his father’s death until he reached the age of majority.
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According to the child, even though the benefit had been deposited in a checking account for five years, the mother left him neglected. And he received no amount to cover food, clothing, and other needs. A fact that would constitute abuse of rights.
The court of first instance extinguished the proceeding without resolution of the merits, on the grounds of the legal impossibility of the request, since it understood that it is not possible to request an accounting from someone who does not have the duty to render it. The Court of Justice of Minas Gerais, however, quashed the judgment in order to determine the regular processing of the case.
According to the reporting justice of the appeal at the STJ, the father and the mother, “while in the exercise of parental authority, are usufructuaries of the children’s assets (legal usufruct), and also have the administration of the assets of the minor children under their authority,” pursuant to Article 1,689, items I and II, of the Civil Code.
“For this reason, as a rule, there is no duty to render an accounting regarding the amounts received by the parents on behalf of the minor, during the exercise of parental authority, since there is a presumption that the funds received have been used for the maintenance of the family community, encompassing the cost of food, health, clothing, education, and leisure, among others,” the reporting justice stated.
However, he clarified that the fact that the parents are usufructuaries and administrators of the assets of their minor children “does not grant them total freedom to use, as they please, the assets of their children, which, strictly speaking, do not belong to them.”
Accounting decision – administration of assets
Since the power of the parents is not absolute, the reporting justice emphasized, “the filing of an action for an accounting by the child must be permitted, on an exceptional basis, whenever the cause of action is grounded in the suspicion of abuse of rights in the exercise of that power,” because “to make it impossible, outright, to file an action for an accounting in this type of situation would end up curtailing the child’s right to judicially challenge any abuse of rights by his parents.”
The reporting justice explained that an action for an accounting has two phases: in the first, the plaintiff seeks the defendant’s condemnation to the obligation to render an accounting; in the second, the accounts presented will be adjudicated.
According to the reporting justice, it will fall to the child to prove, in the first phase, the abuse of rights, demonstrating that the mother failed to pass on to him the minimum necessary to guarantee the meeting of his needs. If this is proven, the judge will rule the claim well-founded in order to compel the mother to render an accounting of the amounts received. Should the child not prove the abuse of rights, the action must be ruled not well-founded, removing the obligation to render an accounting.
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