Who is the Legitimate Representative of a Patient Who is Unable to Manifest Their Will?

Abstract

This article aims to discuss the differences between the concepts of the legal representative and a legitimate representative of the patient in cases of impossibility of will manifestation due to severe infection by the SARS-CoV-2 virus. For this, a qualitative, descriptive, and exploratory methodology it was used, with the bibliographic and documentary review. The results indicate that the Civil Code (CC), the Code of Civil Procedure (CPC), and Law n˚ 13.143/2015 define the concept of legal representative. The concept of legitimate representative, on the other hand, suffers from a bioethical conceptualization and currently translates into a regulatory void or a limbo space in the medical field: no one defines the concept and, therefore, no one uses it. We conclude that there are qualitative differences that cover the competence and attribution between the two statutes and that the State, represented especially by the Class Councils, Medical Specialty Societies and Bioethical Entities, must fill the conceptual gap of the legitimate representative to minimize conflicts among physicians, patients, and families, harmonize clinical conducts and minimize levels of judicialization in health in the country.