Judicial procedure, the role of expert evaluations, and guardianship establishment: how the procedure for declaring a person incapacitated works
If a person, due to a chronic and persistent mental disorder, cannot understand the meaning of their actions or control them, the court may declare them incapacitated. This mechanism is provided by the Civil Code of Ukraine as a way to protect the rights and interests of the person themselves. Together with specialists from the free legal aid system, the Ministry of Justice explained how this procedure takes place.
Who makes the decision on incapacity
Only the court can declare an individual incapacitated. To do this, it is necessary to establish the presence of a chronic, persistent mental disorder that deprives the person of the ability to understand or control their actions.
During the case review, the court evaluates all submitted evidence, including medical documents, expert conclusions, results of forensic psychiatric examination, witness testimonies, and other materials.
Who can file an application
An application to the court to declare a person incapacitated can be submitted by:
- family members;
- close relatives, regardless of cohabitation;
- guardianship and custody authority;
- a psychiatric care institution.
The court fee for submitting such an application is not charged. However, if the court establishes bad faith or insufficient grounds, the costs may be imposed on the applicant.
Protection of interests in court and free legal assistance
In cases of declaring an individual incapacitated, their interests must be represented by a lawyer. The state guarantees free legal aid to such a person, and the lawyer is appointed by the free legal aid system. There is no need to apply separately for this — the mechanism works automatically according to the law.
From what moment a person is considered incapacitated
An individual is considered incapacitated from the moment the court decision comes into legal force.
At the same time, if the validity of a marriage, contract, or other legal transaction depends on the moment incapacity arose, the court may determine the specific date from which the person is considered incapacitated (Article 40 of the Civil Code of Ukraine). In such cases, the conclusions of the forensic psychiatric examination and other evidence regarding the person's mental state are taken into account.
Establishment of guardianship
After a person is declared incapacitated, guardianship is established over them.
A guardian or custodian can only be an adult individual with full civil capacity who has given written consent. Preference is usually given to relatives or persons who have family or close relationships with the ward and can fulfill the duties of a guardian.
At the same time, the law defines cases when a person cannot be a guardian or custodian (Article 64 of the Civil Code of Ukraine). In particular, this applies to persons deprived of parental rights if they have not been restored, as well as those whose interests or behavior conflict with the interests of the ward.
Powers and restrictions of the guardian
The guardian represents the interests of the ward and enters into legal transactions on their behalf, but the law establishes restrictions.
In particular, the guardian, their spouse, and close relatives cannot enter into contracts with the ward, except in cases of transferring property ownership by gift or gratuitous use under a loan agreement. Also, the guardian has no right to make gifts on behalf of the ward or assume surety obligations on their behalf (Article 68 of the Civil Code of Ukraine).
For certain transactions, the guardian requires permission from the guardianship and custody authority (Article 71 of the Civil Code of Ukraine). Without such permission, the guardian cannot, in particular:
- renounce the property rights of the ward, including rights to real estate subject to state registration;
- issue written obligations on behalf of the ward;
- perform transactions involving other valuable property.
Liability for damage
If an incapacitated person causes damage, it is compensated by the guardian or the institution responsible for supervision (Article 1184 of the Civil Code of Ukraine).
In case of the guardian's death or lack of property, as well as if the incapacitated person has property, compensation may be made from that property.
Dismissal and replacement of the guardian
If the guardian cannot perform their duties or other grounds provided by law arise, their dismissal is carried out in the prescribed manner (Article 75 of the Civil Code of Ukraine). After that, a new guardian may be appointed.
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