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Family law Establishment of guardianship over an incapacitated person

Sulyk Roman

Head of family law practice

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sulyk@prikhodko.com.ua

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An attorney with extensive experience specializing in complex family disputes. As Head of Practice, he combines deep legal expertise with a personalized approach to every client. He ensures strategic protection of family interests and delivers impeccable results in the most challenging cases.

Establishment of guardianship over an incapacitated person

As a result of active hostilities in the country, a large number of citizens constantly have to face mental problems.

In practice, this manifests itself in the fact that people notice the manifestations of panic attacks, they do not feel safe, and they have accumulated an extremely high amount of stress that their body is not physically able to cope with, which, as a result, changes the usual behavior of a person.

All these factors directly affect the capacity of individuals and the ability to consciously manage their actions and deeds.

That is why the topic of establishing guardianship is relevant today. In this article, we will talk about the peculiarities of establishing guardianship over an incapacitated person, while analyzing the provisions of the current legislation of Ukraine.

Who is a disabled person?

The provisions of the Civil Code of Ukraine establish the concept of incapacity of a natural person – this is a citizen who, due to a chronic and persistent mental disorder, cannot control his actions and realize their meaning (Part 1, Article 39 of the Civil Code).

A person who is recognized by the court as incompetent needs to establish guardianship over himself (Part 1 of Article 58 of the CCU).

It will also be useful: A guardianship lawyer

Who can apply to the court?

From the analysis of the provisions of the Civil Procedure Code of Ukraine, it can be seen that the following citizens can apply to declare a person incapable, namely (Part 3, Article 296 of the Civil Procedure Code):

family members and close relatives. At the same time, their common place of residence should not be a mandatory condition for applying;
local bodies of guardianship and care;
medical institutions where a person is being treated – this can be a psychiatric health care institution.

Importantly! The participation of the applicant and guardianship authorities is mandatory in cases of recognition of a person as incompetent. They must be personally present during the consideration of such cases, or have their legal representatives.

How to establish guardianship over an incapacitated person?

To declare a person incapable, the future guardian must apply to the court of first instance. The court appoints a guardian based on a submission from the territorial body of guardianship and guardianship.

The application is submitted at the place of residence of the person whom the court will recognize as incompetent, and in the case of his stay on permanent treatment – at the location of the medical (psychiatric) institution (Part 1 of Article 295 of the Code of Civil Procedure). In addition, together with the application, you should submit evidence that confirms the fact of the person’s incapacity (for example, a document on the state of health of the citizen, medical history, etc.).

The decision on the incapacity of a person is valid from the moment it enters into force, but cannot exceed 2 years (Article 300 of the Code of Civil Procedure).

Establishment of guardianship over an incapacitated person

Who is a disabled person?

Who can apply to the court?

How to establish guardianship over an incapacitated person?

Do you want to establish guardianship over an incapacitated person, but do not know the legal intricacies of this procedure?

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Andrey Prikhodko