Establishment of guardianship in court

The topic of guardianship is quite popular in Ukraine today. This is explained by the fact that martial law does not provide for a special procedure for establishing guardianship, and therefore this process can be implemented in practice in the general procedure defined in the legislation.

In addition, the establishment of guardianship provides many advantages to both the future guardian and his ward, for example: compensation from the state for the provision of guardianship services, protection of property and non-property rights of the person over whom guardianship is established, and others.

What is the relevance of consideration of this topic?

In this article, we will talk in detail about the peculiarities of establishing guardianship through the court, taking into account the legislation of Ukraine.

How to establish guardianship through judicial authorities?

First of all, it should be noted that the court’s competence includes the establishment of guardianship over an incapacitated person (who is not aware of the consequences of his actions and deeds and cannot consciously control them).

Therefore, in order to start establishing guardianship over an incapacitated person in Ukraine, the future guardian needs to follow the following algorithm of actions, namely:

• Appeal to the court. The prospective guardian applies to the judicial authority (court of first instance) at the place of registration of the person over whom it is planned to establish guardianship. The applicant in such cases can also be family members or close relatives, while they must necessarily live together.
• Initiation of proceedings and consideration of the merits of the case. After considering the submitted application, the court establishes the grounds for opening proceedings on the case. If they are available, the date, time and place of the case hearing are set. Then all the participants in the case appear at the court session and its consideration takes place. The appearance of the applicant, interested persons, and the person who needs to establish guardianship is mandatory.
• Appointment of forensic psychiatric examination. It is required to establish existing incapacity in a person and in such cases is mandatory for appointment.
• Final decision on the case. After studying all the materials and evidence in the case, the court makes a decision on positive consideration of the case in favor of the applicant or refusal to grant the submitted application. If the requirements in the application were met, the court recognizes the person as incapable and appoints a guardian.

Judicial practice

In the conclusions of the decision of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Cassation Civil Court dated April 7, 2022, in case No. 712/10043/20 (proceedings No. 61-21311 St. 21) it is stated that the right to be a guardian can arise only in case of an appeal to court with a substantiated submission of the relevant body.

Therefore, in order to establish guardianship over a person through the judicial authorities, it is also necessary to have an existing submission of the body of guardianship and guardianship, which must justify why this particular citizen can be a guardian.

Do you need to establish guardianship through the court?

In this case, contact the Prikhodko and Partners law office.

We will help you collect the necessary package of documents for establishing guardianship, as well as explain the procedure for appointing guardianship in practice, as we have many years of experience in various fields of law. Get in touch!