A mobilized person cannot be automatically deprived of the right to be a guardian of an incapacitated person — Supreme Court

The mere fact of undergoing military service due to mobilization is not an automatic and unconditional obstacle to appointing a person as a guardian of an incapacitated individual. This legal conclusion was formulated by the Joint Chamber of the Cassation Civil Court of the Supreme Court. At the same time, in a specific case, the court upheld the decision to refuse the appointment of a mobilized nephew as guardian of his uncle, since the courts found the presence of other close persons who could provide guardianship.

Case circumstances

A man applied to the court with a request to declare his uncle incapacitated and to appoint himself as his guardian. The applicant stated that his uncle has suffered from a mental disorder for many years, has been disabled since childhood, is unable to understand the meaning of his actions, and requires constant external care. According to the applicant, he had actually cared for the relative for a long time, provided him with medicines, food, accompanied him to doctors, and helped with daily life. The guardianship authority also submitted a proposal to the court regarding the advisability of appointing the nephew as guardian.

The court of first instance declared the man incapacitated and established guardianship over him but refused to appoint the applicant as guardian. Temporarily, the duties of the guardian were assigned to the guardianship authority. The appellate court left this decision unchanged, based on the fact that the applicant was undergoing military service due to mobilization, as well as the presence of other close persons who could provide guardianship.

In the cassation appeal, the applicant's representative insisted that the law does not prohibit appointing a serviceman as guardian, and mobilization itself cannot be an independent reason for refusal. It was also noted that the applicant had actually cared for his uncle for a long time, and there were no other persons who could provide guardianship.

What the Joint Chamber of the Supreme Court's Cassation Civil Court stated

Reviewing case 305/1557/24, the Joint Chamber of the Cassation Civil Court noted that Article 64 of the Civil Code contains an exhaustive list of cases when a person cannot be a guardian. Military service, including mobilization, is not among these grounds.

The Supreme Court also noted that military service legislation does not establish a prohibition for a mobilized serviceman to be appointed as a guardian. Instead, the Law "On Military Duty and Military Service" provides for the possibility of releasing a serviceman from service due to the necessity of caring for a person declared incapacitated by the court, under conditions defined by law, particularly if no other persons are providing guardianship for such a person.

The court formulated a legal conclusion that the mere fact of undergoing military service cannot be considered an automatic and unconditional obstacle to appointing a serviceman as guardian. When considering such cases, courts must determine whether there are other persons who provide or can provide guardianship over the incapacitated person, assess their ability to perform guardian duties, and act in the best interests of the ward.

Why the cassation appeal was still denied

Despite the formulated legal conclusion, the Supreme Court left the decisions of the lower courts unchanged.

The Joint Chamber noted that in this case, the courts established the presence of other close persons who could provide guardianship over the incapacitated person. This circumstance, established by the courts, was the reason for refusing to appoint the applicant as guardian, not the mere fact of his military service.

The Supreme Court also refused to depart from its previous legal conclusions set out in rulings dated December 24, 2024, in case No. 716/662/24 and February 27, 2025, in case No. 344/2344/24. The Joint Chamber clarified that in those cases, the refusal to appoint a guardian was also due not to the fact of mobilization itself but to the established presence of other persons who could provide guardianship over the incapacitated person.

Thus, the Joint Chamber of the Supreme Court's Cassation Civil Court confirmed that the mere fact of undergoing military service cannot be considered an automatic and unconditional obstacle to appointing a serviceman as guardian. At the same time, in each case, the court must evaluate the specific circumstances, including the presence or absence of other persons who provide or can provide guardianship, and act in the best interests of the incapacitated person.

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