Military service is not an automatic obstacle to being appointed guardian of an incapacitated person – JCCC SC

The Joint Chamber of the Cassation Civil Court within the Supreme Court concluded that the mere fact of military service is not automatically and unconditionally an obstacle to appointing a serviceman as guardian of a person declared legally incapacitated.

The court noted that the possibility of appointing a serviceman as guardian — which may subsequently serve as grounds for discharge from military service due to family circumstances — directly depends, among other factors, on whether there are other persons who perform, or can realistically perform, such guardianship. The law does not prohibit the appointment of a mobilised person as guardian. However, this private-law instrument cannot be used to avoid the fulfilment of a constitutional duty if the interests of the person declared legally incapacitated can be ensured by other relatives or persons.

The Supreme Court reached these conclusions through the Joint Chamber of the Cassation Civil Court in order to ensure the uniform application of judicial practice.

Circumstances of the case

In the case under review, the applicant applied to the court seeking to have his uncle declared legally incapacitated and to have himself appointed as guardian. The applicant stated that he had lived with his uncle for a long time, cared for him, and provided him with food and medicine, and that there were no other relatives who could perform these duties. At the time the case was considered, the applicant was serving in the military after being called up during mobilisation.

The court of first instance, whose conclusion was upheld by the appellate court, declared the person legally incapacitated but refused to appoint the applicant as guardian, stating that military service made it impossible for him to actually perform the duties of a guardian. In addition, the courts found that the person declared legally incapacitated had other close relatives who, although not on a permanent basis, were able to provide assistance. The duties of guardian over the person declared legally incapacitated were temporarily assigned to the guardianship and custody authority.

Position of the Supreme Court

The Joint Chamber of the Cassation Civil Court dismissed the applicant’s cassation appeal and left unchanged the contested court decisions refusing to appoint him as guardian, setting out the following legal conclusions.

The legal provisions governing guardianship indicate that declaring a natural person legally incapacitated is an exceptional legal measure applied to protect that person. The institution of guardianship is intended to ensure the full exercise and protection of the rights of a person declared legally incapacitated by imposing on the guardian the duty to act in the ward’s interests, provide proper living conditions and care, and ensure legal representation.

The mere fact of military service following mobilisation is not a statutory obstacle to appointment as guardian. Moreover, the law provides a mechanism for exercising the right to guardianship when deciding on the appointment of a mobilised serviceman as guardian: not by restricting or prohibiting such appointment, but by establishing it as grounds for discharge from military service, including during mobilisation. Accordingly, the legislation on military service, mobilisation, and mobilisation training not only does not prohibit the appointment of a serviceman as guardian, but also establishes the consequence of such appointment — discharge from military service, including during mobilisation.

Therefore, the Joint Chamber concluded that the mere fact of military service cannot be regarded as an unconditional obstacle to appointing a person as guardian, since the opposite interpretation would lead to discrimination and a violation of the principle of equality of citizens’ rights.

In such cases, taking into account the best interests of the person under guardianship, courts must determine whether there are other persons who can act as guardians of the person declared legally incapacitated; assess their ability to perform the functions of a guardian, rather than merely provide occasional assistance; examine the sincerity of the serviceman’s intentions as the sole candidate for appointment as guardian in terms of ensuring the ward’s personal non-property and property rights and interests; and consider the criteria that a guardian must meet under the Rules of Guardianship and Custody.

The Supreme Court has repeatedly formulated conclusions on the application of Article 26 of the Law of Ukraine “On Military Duty and Military Service”.

The cassation court emphasised that the law does not require prior discharge from service in order for a person to be appointed as guardian. On the contrary, such appointment is a prerequisite for possible discharge.

At the same time, the Joint Chamber stressed that, when considering such cases, courts must carefully establish whether there are other persons who can act as guardians and assess their ability to perform these functions.

In this case, the courts established that the person declared legally incapacitated had other close persons, and therefore the refusal to appoint the mobilised nephew as guardian was justified.

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