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Family law Procedure for establishing guardianship

Sulyk Roman

Head of family law practice

E-mail

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.

Procedure for establishing guardianship

Legal incapacity — recognition of a person as incompetent by a court based on the conclusion of a forensic psychiatric examination.

Impossibility of self-service — the person cannot independently perform household activities, manage property, or enter into transactions

Grounds for establishing guardianship over incapacitated persons:

Mental illnesses (including):

dementia of various etiologies
schizophrenia in the stage of pronounced disorders
severe bipolar affective disorder
oligophrenia
profound mental retardation
organic brain lesions

Judicial procedure for declaring a person incapacitated

The circle of persons who have the right to initiate judicial procedure for declaring incapacity, The legislator limited it to those entities that have a direct interest in protecting the individual or are professionally engaged in such activities.

These include:

family members of the person;
close relatives;
guardianship and trusteeship body;
healthcare facilities;
social protection institutions.

Such limited jurisdiction prevents abuse by third parties who could use this procedure for selfish purposes.

The procedure begins with the submission of a relevant application to the court, which must contain a detailed justification for the need to declare the person incapacitated.

The application must be accompanied by medical documents confirming

the person has a mental disorder;
his character;
the degree of impact on a person’s ability to be aware of their actions.

These documents must be issued by appropriate medical institutions and contain the opinions of qualified psychiatrists.

A feature of the consideration of cases of recognition of incapacity is the mandatory appointment of a forensic psychiatric examination.

The court cannot make a decision based only on available medical documents — the examination is conducted specifically for the trial and must answer specific questions about the person’s ability to realize the meaning of their actions and control them.

The examination can be performed both on an outpatient basis and in an inpatient setting, depending on the person’s condition and the complexity of the case.

The court hearing is held with the mandatory participation of the prosecutor and a representative of the guardianship and trusteeship authority,which emphasizes the special social significance of such cases.

A person whose incapacity is being considered has the right to participate in the meeting if his or her health permits.

In cases where a person’s participation is impossible due to the severity of their condition, the court may consider the case without their presence, but maximum protection of their rights and interests must be ensured.

Such a court decision has far-reaching legal consequences. Guardianship is established over such a person, which is carried out by a specially appointed guardian.

The guardian receives broad powers to represent the interests of an incapacitated person – he has the right to perform all necessary transactions on his behalf:

to dispose of her property
to represent its interests in various institutions and organizations.

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In this case, the guardian bears full responsibility for his actions and is obliged to act exclusively in the interests of the ward.

An incapacitated person completely loses the right to independently conclude any transactions. All agreements concluded by him after the court decision on recognition of incapacity enters into force are considered null and void. This applies to both property and non-property transactions – from purchase and sale to marriage.

The procedure for declaring a person incapacitated is a measure of last resort,which is applied only in cases where other forms of assistance and support cannot provide adequate protection of the rights and interests of the individual.

Courts approach the consideration of such cases with particular care, considering that a decision to recognize incapacity actually deprives a person of one of their basic civil rights – the right to independently make decisions regarding their own life.

The current trend in Ukrainian legislation is aimed at maximally preserving the legal capacity of persons with mental disorders wherever possible.

Instead of complete deprivation of legal capacity, mechanisms of limited legal capacity or patronage are increasingly being used, which allow a person to maintain a certain autonomy while providing them with the necessary support.

This is consistent with international human rights standards and the principles of an inclusive society, where each person has maximum opportunities for self-realization within their abilities.

Procedure for establishing guardianship

Judicial procedure for declaring a person incapacitated

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Andrey Prikhodko