There are cases in which an adult person, due to an illness resulting in “mental deficiency or mental disorder”, is not able to properly take care of their affairs or to manage their actions in a mature and responsible manner. The law provides for the possibility of limiting or depriving such a person of legal capacity by placing them under limited or full guardianship.
The legal framework governing placement under guardianship is set out in the Persons and Family Act (Articles 5 et seq.) and in the Civil Procedure Code (Articles 336 et seq.).
Both an adult and a minor may be placed under full guardianship, whereas limited guardianship may be imposed only on an adult. In order for a person to be placed under guardianship, two cumulative conditions must be met – a medical and a legal one:
the existence of a disease affecting the person’s intellect, will, or mental condition;
the disease must be of such a nature that the person does not understand, or does not fully understand, the nature and significance of their actions and conduct.
The mere existence of a mental illness is not, in itself, sufficient grounds for placing a person under guardianship. The second condition must also be present – namely, the person’s inability to manage their own affairs. This inability must be permanent, not temporary.
An application for placement under full or limited guardianship may be filed by:
the spouse of the person concerned;
close relatives or family members;
the district prosecutor;
any person having a legal interest.
The participation of the prosecutor in the proceedings is mandatory, regardless of who has filed the application.
The person whose placement under guardianship is sought must be personally heard by the court. If the person refuses to appear, they may be brought before the court compulsorily. The court must form its own direct impressions of the person’s condition. As a rule, the court appoints an expert examination; the expert, after reviewing the evidence and examining the person, gives an opinion as to whether the person is capable of managing their affairs and directing their actions.
If the person is admitted to a medical institution or their health condition does not allow them to appear before the court, an expert examination is mandatory, during which the expert gathers direct impressions of the person’s health condition.
In such proceedings, witnesses may also be heard in order to establish facts relating to the person’s behaviour and to assess whether they understand the nature and significance of their actions.
The type of guardianship imposed (full or limited) is determined by the court on the basis of all evidence collected in the proceedings.
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