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Family law Guardianship of an incapacitated person

Anna Saliienko

Lawyer

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saliienko@prikhodko.com.ua

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Family law specialist. Deals with issues of divorce, alimony, division of property and adoption.

Guardianship of an incapacitated person

The establishment of a guardianship is an important legal mechanism that allows for the protection of the rights and interests of people who cannot make independent decisions and take care of themselves due to mental or physical disorders.

Law office “Prikhodko and Partners” provides professional consultations and assistance in the registration of guardianship over an incapacitated person, ensuring compliance with all legal procedures and protection of your rights.

photo Guardianship of an incapacitated person

Guardianship – is a legal institution that provides for the appointment of a guardian to protect the rights and interests of an incapacitated person (in particular, cognitive and/or mental disorders). The guardian assumes responsibility for the health, well-being and property of the ward, ensuring proper care and management of his affairs.

This is a special form of social and legal assistance aimed at supporting the most vulnerable sections of the population.

Guardianship can also be established over a person with whom you have no family or blood ties.

However, this is possible only if there are no other relatives or persons who have the duty to take care of this person.

The terms of court proceedings for the establishment of guardianship due to recognition of a person as incapacitated often exceed 6 (six) calendar months

Disability group ≠ disability

Guardianship is established by the court in the presence of medical conclusions about the incapacity of the person and the conclusions of the medical forensic psychiatric examination for the purpose of determining the mental state of the person and the body of guardianship and care.

The grounds for recognizing a person as incapacitated may be:

Mental disorders: A health condition that interferes with adequate decision-making (schizophrenia, bipolar disorder, etc.). Such diseases can significantly affect a person’s ability to understand and manage their actions.
Physical Disorders: Diseases or injuries that significantly limit the ability to live independently and make decisions. These can be the consequences of strokes, severe injuries, progressive chronic diseases.
Other circumstances: Situations in which a person needs constant care and support due to loss of legal capacity. These can be various combinations of physical and mental conditions that collectively make a person incapacitated.

When establishing guardianship, a mandatory factor is the fact of joint residence guardian and ward.

Guardianship registration procedure

Submitting an application to the court: The guardianship registration process begins with the submission of an application to the court. The application can be submitted by close relatives, guardianship and guardianship authorities, or other interested persons. Medical reports confirming the person’s incapacity are attached to the application.
Medical forensic psychiatric examination: The court appoints a medical psychiatric examination to confirm a person’s incapacity. The examination is carried out by specialized medical institutions and experts. The results of the examination must be objective and based on a comprehensive examination of the person.
Meeting of the board of trustees: The court obliges the Guardianship Authority, as a third party that does not make independent claims, to provide an opinion on the expediency of appointing a specific person to the status of a guardian.
Consideration of the case in court: After receiving the conclusions of the medical examination and the guardianship council, the court in a session listens to all interested parties and makes a decision on the appointment of a guardian. The trial may include questioning witnesses, listening to the opinions of experts, and analyzing documents. The court makes a decision on declaring a person incapable and appointing a guardian.
Appointment of guardian: After the court decision, the guardian receives an official certificate and begins to perform his duties. The guardian is obliged to take care of the health, safety and welfare of the ward, as well as to represent his interests in all legal and financial matters. This decision is binding and has legal force.

Thus, the procedure for establishing guardianship is carried out exclusively through judicial authorities when a person is recognized as completely incapable (as a result of physical disabilities that caused mental and cognitive disorders), which requires full support, care and responsibility for him.

The guardian has a wide range of duties and rights, which are regulated by the legislation of Ukraine:

Caring for a ward: The guardian is obliged to ensure proper care and medical care of the ward. This includes regular medical examinations, provision of medicines, home care.
Finance and property management: The guardian is responsible for managing the ward’s finances and property. This includes keeping records of income and expenses, managing real estate and other assets.
Protection of rights and interests: The guardian is obliged to protect the rights and interests of the ward in all legal matters. This may include representation in court, concluding contracts on behalf of the ward.
Reporting: The guardian must regularly report to the guardianship authorities on the state of health and well-being of the ward. This allows you to monitor the activities of the career and ensure the appropriate level of care.

The guardian also has certain rights, including the right to receive compensation for expenses related to the care of the ward, if this is provided by law or contract.

ALSO, to date, the guardianship of a person recognized by the court as incompetent is the basis for obtaining a deferment from military service.

If considering the possibility of obtaining a postponement on this basis, in the consideration of the case on the appointment of a guardian at the stage of choosing a candidate for the status of guardian of a person recognized as incapable, if such a person is conscripted into the military, it is necessary to take into account the presence of other persons in the family who could occupy the position of guardian, the expediency of the appointment of this person, as well as whether there is a warm personal relationship between the applicant and his potential ward.

Establishing guardianship over an incapacitated person is a complex and responsible process that requires careful preparation and compliance with all legal procedures. The law firm “Prikhodko and Partners” is ready to provide you with professional assistance at all stages of guardianship registration, ensuring the protection of your rights and interests.

Guardianship of an incapacitated person

Guardianship registration procedure

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