Need for external care or recognition of a person as incapacitated: what’s the difference?

There are situations in life when a person cannot fully take care of himself - due to illness, age or other circumstances. In such cases, the law provides for various mechanisms of protection and support: from establishing care to recognizing a person as incapacitated. We will talk about this in more detail below.

How to establish the need for external care?

The need for constant external care is determined depending on the person's health status and is confirmed by medical documents. For persons with disabilities of group 1, the decision on the need for care is made automatically by the commission, since this category has the highest degree of disability. This applies to both category A (complete loss of ability to self-care) and category B (partial self-care).

In other cases, the issue is resolved by the attending physicians and medical advisory committees, which issue the appropriate conclusion. The need for care may be established:

• in the case of incurable diseases that make independent movement or self-service impossible;
• in elderly citizens with cognitive impairments;
• for persons with disabilities of groups I or II due to mental disorders.

The basis for confirmation is medical certificates drawn up in accordance with established forms, which serve as official confirmation of the need for constant assistance.

How to recognize a person as incapacitated?

The establishment of incapacitated is carried out exclusively by court decision and, as a consequence, provides for the appointment of a guardian.

First, you should contact the guardianship and trusteeship body, which will conduct a full investigation of the circumstances and prepare an appropriate conclusion regarding the possibility of appointing a guardian.

The next stage is to file an application with the court at the place of registration of the person in need of guardianship or at the place of residence of the potential guardian. The claim should include data confirming the presence of a mental disorder due to which the person is unable to realize his or her actions and control them.

Medical documents are attached to the application:

• health certificate,
• extract from the medical history, etc.

After considering the case, the court makes a decision on incapacity or limited capacity, establishes guardianship and appoints a guardian, whose candidacy is submitted by the guardianship and trusteeship body.

The court decision is valid within the period established by the court, but not more than 2 years. The status of an incapacitated person is valid from the moment the decision enters into legal force.

What is the difference between these two categories?

In practice, these two concepts are often confused, because in both cases we are talking about a person who cannot fully provide for his or her own needs. However, the need for care and incapacity have different legal natures, procedures for establishing them, and consequences:

• Establishing body: the need is recognized by a special commission; incapacity - only the court.
• Consequences: the need for care does not limit legal personality; incapacity deprives a person of the opportunity to independently exercise rights and obligations.

Thus, a person may need constant care, but at the same time remain fully capable. And vice versa - a person may be recognized as incapacitated even without physical helplessness, if his or her mental state makes it impossible to make independent decisions.

So, in general, it is worth noting that recognizing a person as incapacitated automatically entails the establishment of guardianship over him or her, in turn, care is provided only to a capable person.

Recommendations from a lawyer

1. Collect and store all documents: medical reports, certificates, extracts from medical history, decisions of medical commissions. These are key evidence in the case.
2. Get examined by qualified doctors: only official medical reports have legal force.
3. Do not delay with the execution of documents: delays can complicate the process and lead to additional checks.
4. Consult with a medical lawyer: a specialist will help you avoid mistakes and collect the necessary evidence base.

How can we help?

If you have questions about establishing guardianship or assigning care, the medical lawyers of the Law Firm "Prikhodko and Partners" are ready to help at every stage.

We will analyze your situation in detail, explain what actions should be taken in your case, and prepare a clear plan. Our services include:

• professional consultation and legal analysis;
• preparation and execution of all necessary documents;
• sending attorney requests;
• full support of the case in guardianship and trusteeship bodies or in court;
• appealing refusals / unlawful decisions.

Our medical lawyer has many years of experience and has successfully worked with dozens of similar situations, which allows us to effectively protect the interests of clients. Leave a request on our website - we will contact you and offer the best solution specifically for your situation.