UNBA warned about the risks of uncoordinated changes regarding incapacitated persons

The Ukrainian National Bar Association supports the idea of strengthening guarantees for persons declared legally incompetent by a court, but warns against adopting changes that are not coordinated with each other. To ensure real, rather than declarative, protection of rights, a systematic review of the provisions of the Civil Code and the Code of Civil Procedure is necessary.

These conclusions were reached by the UNBA Committee on civil law and procedure following an analysis of draft laws on improving the protection of the rights of persons recognized by the court as legally incompetent:

• No. 13354 on amendments to the Civil Code;
• No. 13355 on amendments to the Civil Procedure Code.

Both drafts were recently adopted as a basis.

In particular, they propose to expand the circle of subjects who can apply to the court with a request to restore civil capacity. The relevant right is granted to the person recognized by the court as incapacitated.

Advocates pointed out that, according to Part 2 of Article 41 of the Civil Code, such a person does not have the right to perform any legal acts, and according to Part 1 of Article 59 of the Civil Procedure Code, their rights, freedoms, and interests are protected in court by guardians. In other words, the law deprives an incapacitated person of the ability to independently make decisions regarding the exercise of their subjective rights. Therefore, in order to implement the legislative initiative, it must be harmonized with the rules that limit the ability of an incapacitated person to perform legal acts. This also applies to the proposal to expand the circle of persons authorized to initiate the dismissal of a guardian.

On the other hand, psychiatric care institutions are excluded from the list of entities that can file an application for the restriction of a natural person's civil capacity or for the recognition of a natural person as incapacitated, and such a step, in the opinion of the UNBA Committee, is premature.

Thus, under the Law «On psychiatric care», medical workers at specialized institutions are vested with broad powers to protect the rights of persons in need of such care. In particular, they may file applications with the court:

• for the compulsory hospitalization of a person suffering from a mental disorder in a psychiatric care institution (Article 14);
• to extend, change, or terminate the application of compulsory medical measures applied by court order (Article 19).

At the same time, the owner of a psychiatric institution or an authorized body has the right to appeal in court against the decision of the guardianship and custody authority if the commission of doctors -psychiatrists finds violations by the guardianship and custody authority of the rights of persons under the age of 14 and persons recognized as legally incompetent in accordance with the procedure established by law, committed by the guardianship and custody authority.

Given the existing case law, which confirms frequent cases of improper performance of their functions by guardianship and custody authorities (untimely establishment of guardianship and appointment of a guardian), it is worth preserving the possibility for psychiatric care institutions to apply to the court with a statement of incapacity.