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Family law specialist. Deals with issues of divorce, alimony, division of property and adoption.
A guardianship lawyer
Guardianship and guardianship issues are among the most sensitive in the legal sphere, because they are aimed at protecting persons who, due to age, health or other circumstances, cannot fully independently exercise their rights and fulfill their duties.
In each of these situations, the state applies special legal mechanisms — guardianship.
And it is the guardianship lawyer who is the specialist who helps to correctly go through complex legal procedures, protect the interests of the ward and avoid mistakes that make people unable to resolve their issues for years.
In Ukrainian legislation, the terms “guardianship” are used in two categories of life situations — in relation to children and in relation to adults whose legal capacity is limited or absent.
This is important to understand, because people often mistakenly believe that guardianship applies only to children or only to the incapacitated, although in practice it is the same legal construction, simply used in different conditions.
Child custody (minors, under 14 years old)
- Guardianship is appointed when the child is left without parental care.
- The guardianship authority checks candidates and makes decisions, but in difficult cases, the issue can be decided by the court.
Child custody (minors, 14–18 years old)
- The guardian controls the actions of the child, helps him to exercise his rights, but the child already has partial civil legal capacity, so the role of the guardian is different, not as complete as the guardian.
Custody of an adult incapacitated person
- This is possible only after the court recognizes a person as incapacitated.
- Guardianship authorities cannot establish incapacity — they only provide an opinion on the candidacy of a guardian.
- After the court decision, the guardian has full authority to represent the interests of the ward.
Guardianship of an adult with limited legal capacity
- Likewise, it is established exclusively by the court after a medical-psychiatric examination.
- The trustee controls the significant decisions of the ward (transactions, use of property, social issues), but the ward does not lose his legal capacity completely.
It should be emphasized that in cases involving adults, the issue of incapacity or limited legal capacity is decided exclusively by the court.
No guardianship authority has the authority to recognize a person as incapacitated. He only checks the candidacy of the guardian and submits his opinion to the court.
The court, in turn, makes a separate decision on the establishment of guardianship after it recognizes a person as incapacitated or with limited legal capacity on the basis of medical documents and examinations.
Therefore, it is important that a person who wants to take custody of an adult relative does not first apply to the guardianship authorities, but understands: you need to start with a lawsuit, and at this stage, legal support of a lawyer is practically necessary.
In relation to children, the procedure is somewhat different
If a minor child is left without parental care, the guardianship authority has the authority to appoint a guardian without going to court.
It can be a grandparent, aunt or other relative. But even in such cases, disputes often arise: between relatives, with guardianship authorities, in matters of choosing the best conditions for the child.
A correct understanding of the difference between guardianship and care is important not only for lawyers, but also for ordinary citizens.
Very often, people take care of elderly relatives with dementia for years, but cannot solve elementary legal issues:
- apply for a subsidy, conclude an agreement;
- receive a pension instead of a relative;
- dispose of a bank account or real estate.
And only when they are faced with a refusal from a bank or social security body, they understand that it is necessary to apply for guardianship.
Unfortunately, at this stage, a lot of time is often lost, and sometimes even opportunities, because the procedure for recognizing a person as incapacitated and appointing a guardian can take several months, or even a year, if the authorities delay the process or require additional documents.
That is why the role of a guardianship lawyer is important, who analyzes the situation, determines what type of guardianship or care is needed, and builds a sequence of actions.
He helps to collect documents, obtain medical reports, correctly form claims, accompanies the client in the guardianship authorities, and also represents interests in court.
This is especially important in cases of incapacity: a lawyer not only prepares a package of documents, but also makes sure that the rights of the person himself are not violated, because recognizing a person as incapacitated is a serious step that significantly limits his freedoms.
The procedure for establishing guardianship always begins with the collection of documents
In the case of children, these are:
- health certificates,
- characteristics
- housing documents,
- confirmation of family ties.
In the case of adults:
- medical certificates,
- psychiatric conclusions,
- conducting a forensic psychiatric examination.
The guardianship authority then checks the living conditions and provides its opinion. For the court, this conclusion is important, but not decisive — the court can make a decision without it, if it considers it necessary to protect the rights of the ward.
After the appointment, the guardian or trustee is obliged to act exclusively in the interests of the ward: to provide him with proper living conditions, care, treatment, development (if it is a child), to manage his property only with the permission of the guardianship authorities.
An attorney helps guardians meet these requirements correctly and without the risk of prosecution for violations.
The issue of guardianship of an incapacitated person in the context of obtaining a deferment from mobilization deserves special attention
The legislation provides that a person who is the legal guardian of an incapacitated relative has the right to a deferment if the ward needs constant third-party care and there are no other persons who can perform these duties. It is important to emphasize that a deferment is possible only in the case of officially established guardianship, confirmed by a court decision.
Therefore, it is the correct legal registration of guardianship that becomes a critical factor: without a court decision, the guardian cannot count on receiving a deferral, even if he actually takes care of the person for a long time.
To confirm the grounds, the following must be submitted:
- a court decision on the recognition of a person as incapacitated,
- court decision on the appointment of a guardian.
In such situations, the lawyer helps to correctly draw up all the documents, prove the fact of the absence of other persons who can provide care, and also accompanies the client when submitting documents to the territorial recruitment center.
To receive professional assistance in matters of guardianship and trusteeship, you can always contact experienced lawyers of Prikhodko & Partners Law Firm.
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