What is the incapacity of an individual?
To provide a definition of an individual’s incapacity, it is necessary to note what the capacity of such a person consists of.
A natural person who is aware of the significance of their actions and can control them possesses civil capacity. That is, an individual can, by their actions, acquire civil rights for themselves and exercise them independently, as well as assume civil duties for themselves, fulfill them independently, and bear responsibility in case of their non-fulfillment.
Thus, from the above, we conclude that an incapacitated person is one who does not understand the significance of their actions and/or cannot control them.
What are the grounds for recognizing a person as incapacitated?
In fact, there is one sole ground for recognizing an individual as incapacitated, which is provided for by the Civil Code of Ukraine.
A person may be recognized as incapacitated only if they suffer from a chronic, persistent mental disorder and, as a result, as noted above, are incapable of understanding the significance of their actions and/or controlling them.
Who can file an application to recognize a person as incapacitated?
As is clear from the legislation, not just anyone can apply for the recognition of a person as incapacitated. There is a specific limited circle of persons and bodies that can do this.
According to the Civil Procedural Code of Ukraine, an application for the recognition of an individual as incapacitated may be submitted by:
- members of such person’s family and their close relatives, regardless of whether they reside together;
- the guardianship and care authority;
- a psychiatric care institution.
Where is the application for recognition of incapacity filed?
In accordance with current legislation, only a court can recognize a person as incapacitated. However, the question arises: to which specific court should such an application be submitted?
The answer is contained in Part 1 of Art. 295 of the Civil Procedural Code of Ukraine. According to the cited norm, the application for recognizing a person as incapacitated is submitted to the court at the place of residence of this person, or if they are undergoing treatment at a psychiatric care institution, at the location of such an institution.
Moreover, there is a certain exception related to the fact that the person whose incapacity needs to be recognized may reside outside Ukraine. In such a case, the applicant may submit a motion, upon consideration of which the Supreme Court shall determine the appropriate jurisdiction by its ruling.
How to correctly draft an application for recognizing an individual as incapacitated?
Civil legislation establishes a clear requirement regarding what exactly must be stated in the application for recognizing an individual as incapacitated.
Such an application must contain circumstances indicating a chronic, persistent mental disorder, as a result of which the person is incapable of understanding the significance of their actions and/or controlling them. Additionally, certain evidence confirming the aforementioned circumstances must be attached to the application: certificates, medical cards, medical history, doctors’ opinions, etc.
Furthermore, the guardianship and care authority must be involved in the application, as they are the ones who will make a submission for establishing guardianship over the incapacitated person. Also, if the applicant wishes to become the guardian of the incapacitated person, they must state this in the application and argue their position.
Is a forensic psychiatric examination necessary?
Certainly, in order to establish the incapacity of an individual, the court must—as explicitly provided by law—appoint a forensic psychiatric examination to establish their mental state if there is sufficient data regarding the person’s mental health disorder.
The court issues a ruling on the appointment of a forensic psychiatric examination, in which it lists the questions for the expert to resolve. According to Article 4 of the Resolution of the Plenum of the Supreme Court of Ukraine dated March 28, 1972, No. 3 “On Judicial Practice in Cases of Recognizing a Citizen as Having Limited Capacity or Incapacitated,” the court poses two questions:
- does the given citizen suffer from a mental illness;
- do they understand the significance of their actions and can they control them.
Moreover, there are cases where a person clearly evades undergoing the examination. In such a case, the court, with the participation of a psychiatrist in the court session, may issue a ruling on the forced referral of such a person for a forensic psychiatric examination.
How does the court hearing of a case on recognizing a person as incapacitated take place?
Firstly, it should be noted that cases on recognizing a person as incapacitated are considered in the order of separate proceedings, since there is no dispute regarding a right in such cases.
Secondly, the relevant cases are considered with the participation of the applicant, the person regarding whom the case for recognition of incapacity is being considered, their lawyer, and a representative of the guardianship and care authority. Additionally, summoning the incapacitated person is decided in each case taking into account the state of their health. The court may appoint an appropriate examination to determine whether such a person really cannot appear in court, as well as whether the person can personally provide explanations regarding the essence of the case.
Furthermore, the participation of such an incapacitated person may take place via video conference from the psychiatric or other medical institution where they are located, taking into account the state of their health.
Thirdly, regarding court costs, they do not need to be paid in cases of this category; the state takes them upon itself. However, if the court establishes that the applicant acted in bad faith, then in such a case, the court costs will be collected.
Finally, it should be noted that the term of validity of the decision on recognizing a person as incapacitated is determined by the court, but cannot exceed two years.
From what moment is a person considered incapacitated?
Legislation clearly establishes that a person is considered incapacitated from the moment the court decision regarding this enters into legal force.
However, as always, there is a certain exception. The court may determine a date in the decision from which the person will be recognized as incapacitated, taking into account the conclusion of the forensic psychiatric examination and other evidence regarding the mental state of such a person, only if the recognition of a marriage, contract, or any other transaction as invalid depends on the time of the onset of incapacity.
What are the legal consequences of recognizing a person as incapacitated?
The legislator establishes three main consequences of recognizing an individual as incapacitated, which affects their legal status.
Firstly, as mentioned above, guardianship is established over such a person, which will be covered in the next section.
Secondly, an incapacitated person does not have the right to enter into transactions. Transactions on behalf of such a person and in their interests are concluded by their guardian. Moreover, the guardian may approve a minor household transaction entered into by the incapacitated individual. Such a transaction will be considered approved if the guardian, having learned of its execution, does not declare a claim to the other party within one month. In the absence of such approval, this transaction and other transactions entered into by the incapacitated individual are null and void.
Furthermore, at the request of the guardian, a transaction entered into by an incapacitated individual may be recognized by the court as valid if it is established that it was entered into for the benefit of the incapacitated individual.
Thirdly, the guardian bears responsibility for damage caused by such an incapacitated person. However, one should also know that if the guardian has died or lacks sufficient property to compensate for the damage, and the incapacitated person themselves has such property, the court may make a decision on compensation for damage caused by mutilation, other health impairment, or death of the victim, partially or in full at the expense of the property of this person.
How is guardianship established over an incapacitated person?
The court establishes guardianship and appoints a guardian to the person upon the submission of the guardianship and care authority when it adopts the decision on recognizing the person as incapacitated.
Only a natural person with full civil capacity can be a guardian, meaning, as a general rule, a person who has reached 18 years of age. Additionally, a person may be appointed as a guardian only upon their written application. Guardians are appointed primarily from among persons who are in family or kinship relations with the person recognized as incapacitated, taking into account personal relationships between them and the person’s ability to fulfill the duties of a guardian.
Furthermore, a person may have not just one guardian, but several.
Also, the legislation defines a list of persons who cannot be guardians. These are persons:
- who have been deprived of parental rights, if these rights have not been restored;
- whose behavior and interests contradict the interests of the individual requiring guardianship.
There is also a procedure for releasing a guardian from their powers. Thus, the court may, within a one-month period upon the application of the guardianship and care authority or the person who is the guardian, release such guardian from powers and appoint another person in their place.
Can an individual’s civil capacity be restored?
Indeed, a restoration mechanism is provided by the Civil Code of Ukraine, and a person who was recognized as incapacitated can restore their capacity again.
To do this, the person who is the guardian, a family member, or a lawyer of such person, or the guardianship and care authority, or the person themselves must submit an application. The court, in turn, establishes whether the ability to understand the significance of their actions and control them has been restored in the person who was recognized as incapacitated, as a result of their recovery or significant improvement in their mental state, based on the relevant conclusion of a forensic psychiatric examination. If the ability has been restored, the civil capacity of the individual is restored, and the guardianship is terminated.
Legal assistance in cases regarding recognition of incapacity
In fact, legal assistance in such cases is extremely important, as recognizing a person as incapacitated affects their fundamental rights, freedoms, and interests. Such a person loses certain rights they had prior to the adoption of the court decision.
A lawyer will propose the most optimal option regarding whether it is better to limit the person’s civil capacity or to recognize the person as incapacitated altogether. Additionally, a specialist will help draft all procedural documents, in particular the application for recognizing the individual as incapacitated, and collect medical documents indicating that the person is incapable of understanding the significance of their actions and/or controlling them.
As mentioned above, recognizing an individual as incapacitated entails certain consequences, in particular, the establishment of guardianship. In order for the procedure of such establishment and appropriate registration to be followed, legal assistance is highly advisable.
Thus, a lawyer in cases regarding recognition of incapacity will ensure the observance of the rights and interests of the person being recognized as incapacitated, the correctness and error-free nature of the drafted documents, minimize the risks of abuse of the person’s rights, and help organize further support for the person recognized as incapacitated.