Legal advice

Legal grounds for registration of guardianship over an incapacitated person

Many people in our troubled times feel the need to take responsibility for family members or perhaps close friends who have become completely unable to care for themselves or manage their finances due to any physical or mental impairment.

So, if you have a loved one who needs constant outside care, or is dealing with everyday problems that limit their ability to care for themselves, they may need a legal guardian.

The lawyer association “Repeshko and Partners” comments on the issue of the legal grounds for the registration of guardianship over an incapacitated person.

Due to the fact that the status of the guardian of an incapacitated person provides an opportunity to legally cross the borders of Ukraine during the martial law, the issue of establishing guardianship over an incapacitated person is quite relevant nowadays. Although the process of establishing guardianship over an incapacitated person can be time-consuming and complicated, it should be remembered that the decision to declare a person incapacitated and appoint a guardian is made by the court. The validity period of such a decision cannot exceed two years. Yes, Part 1 of Art. 40 of the Civil Code of Ukraine, it is established that a natural person is recognized as incapacitated from the moment the court’s decision to this effect enters into force.

The legislation of Ukraine stipulates that a natural person may be recognized by the court as incompetent if, as a result of a chronic, persistent mental disorder, he is unable to realize the meaning of his actions and (or) manage them. This means that a person due to his health condition cannot independently exercise his rights and fulfill the duties assigned to him.

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Thus, in the event that a person can no longer take care of himself independently, an application must be submitted to the court from the person who wishes to become a guardian, requesting to be appointed a guardian for such a person.

Thus, in the event that the court recognizes a person as incompetent, the court appoints a guardian for such a person at the request of the guardianship authority. That is, it is necessary to involve the body of guardianship together with the application to the court for the appointment of a guardian. It should also be remembered that only a natural person with full civil legal capacity can be a guardian only upon his written application. At the same time, the guardian is appointed mainly from persons who are in a family relationship with the ward, taking into account the personal relationship between them, the ability of the person to perform the duties of the guardian.

Custodial responsibilities involve managing the day-to-day needs of the ward, including food, adequate housing, clothing, medical care, and more. A person who wishes to become a guardian must always act in accordance with the requirements of the law and not violate the rights of the ward, is obliged to take measures to protect the civil rights and interests of the ward. However, the legislation of Ukraine establishes some restrictions on the execution of transactions by the guardian. Thus, the guardian, his wife, husband and close relatives (parents, children, brothers, sisters) cannot conclude contracts with the ward, except for the transfer of property to the ward for ownership under a donation agreement or for free use under a loan agreement. The guardian may not make a donation on behalf of the ward, nor undertake a suretyship on his behalf.

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In addition, it is worth noting that the guardian is responsible for the actions of the ward, if he does not prove that the damage was not caused by his fault. Guardianship is terminated in the event of restoration of civil legal capacity of an individual who was recognized as incompetent.

So, guardianship is a very difficult and responsible step, which gives a person the legal right to care and make decisions for another person, and can become an important lifeline for people in need of help.

 

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