Not every serviceman can become a guardian of an incapacitated person: The Supreme Court named the key condition

The fact that a candidate for guardianship is in military service in itself is not a legislative ground for refusal to appoint him as guardian of an incapacitated person. At the same time, the court must assess not only the absence of formal legislative restrictions but also whether the candidate has a real possibility to perform the duties of a guardian considering the best interests of the ward.

This conclusion was reached by the Civil Cassation Court as part of the Supreme Court.

The mother requested to appoint the younger son, a serviceman, as guardian

The case concerned the replacement of a guardian for a man who was recognized as incapacitated in 2005 due to a severe mental illness.

After the mother became his guardian in 2018, her health significantly deteriorated. She informed the court that due to her age and health condition, she could no longer properly fulfill the duties of a guardian, so she asked to be relieved of these powers and to appoint the younger son — the incapacitated man's brother — as guardian.

She noted that the brother has a good relationship with the ward, lives at the same address, has no criminal record, is not registered with a psychiatrist or narcologist, and the guardianship council recognized the advisability of his appointment as guardian, which the executive committee informed the court about. At the same time, since 2023, the man has been serving in the Armed Forces of Ukraine.

Why the courts refused to appoint the new guardian

The courts of first and appellate instances agreed that the mother could no longer perform the functions of guardian and relieved her of these duties.

However, they refused to appoint the brother-serviceman as guardian.

The courts reasoned that the incapacitated man has a group I disability from childhood, suffers from profound intellectual disability with pronounced behavioral disorders, is unable to self-care, and requires constant daily external care.

Since the candidate is serving in the military in another location, the courts concluded that he currently cannot fully ensure the performance of guardian duties. Until the appointment of a new guardian, the guardianship and trusteeship authority was responsible for care.

Military service is not included in the list of legislative prohibitions

The Civil Cassation Court left the decisions of the previous instances unchanged.

The Supreme Court emphasized 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 included in this list.

The court also noted that legislation on military duty and service not only does not prohibit appointing a serviceman as guardian but also provides for the possibility of his release from military service in cases defined by law due to guardianship duties. Thus, military service itself is not a legal obstacle to appointing a person as guardian.

The decisive factor is the ability to perform guardian duties

The Supreme Court pointed out that as early as June 22, 2026, the United Chamber of the Civil Cassation Court formulated a legal conclusion that the mere fact of military service by conscription during mobilization cannot be grounds for refusal to appoint a person as guardian.

At the same time, in each specific case, the court must establish whether the candidate is realistically able to perform guardian functions, assess his ability to ensure the personal non-property and property rights of the ward, consider criteria defined by legislation and the Rules of Guardianship and Trusteeship, and proceed from the best interests of the person under guardianship.

Why the cassation appeal was dismissed

In case 495/1975/24, the Supreme Court stated that the courts refused to appoint the brother as guardian not because of the mere fact of his military service, but due to the courts' finding that he currently lacks the real possibility to provide constant daily care for the ward.

The court took into account that the incapacitated person requires constant care, and the candidate serves in the military in another location, so he currently cannot fully perform guardian duties.

Until the appointment of a new guardian, the guardianship and trusteeship authority provides care for the incapacitated person and is obliged to ensure the creation of necessary living conditions, care, treatment, and protection of his civil rights and interests. At the same time, the brother is not deprived of the possibility to be appointed guardian in the future if circumstances that currently prevent him from properly fulfilling these duties change.

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