Parental guardianship in Ukraine: legal aspects and procedure

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Consultant # 1377

Lawyer

Ukraine / Kyiv

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Publication date: 24.07.2024

Introduction

Parental guardianship is an important component of social protection and support for older people who, due to certain circumstances, cannot exercise their rights and responsibilities independently. This is especially true in cases where parents have serious physical or mental disorders that require constant care and support. In Ukraine, the law clearly regulates the procedure for establishing guardianship, the rights and obligations of guardians, as well as social guarantees for persons under guardianship. In this article, we will review the main legal aspects and procedure for obtaining parental guardianship, including the legal framework, criteria for appointing a guardian, guardians' obligations and rights, social guarantees, and court practice.

Legal framework

1. The Civil Code of Ukraine: Defines the legal basis for the establishment of guardianship and custody, the rights and obligations of guardians.
2. Family Code of Ukraine: Regulates issues of family relations, including guardianship and custody of incapacitated and partially incapacitated persons.
3. Law of Ukraine "On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine": Establishes basic guarantees of social protection for persons with disabilities.
4. Law of Ukraine "On Psychiatric Care": Defines the legal framework for the provision of psychiatric care, including the procedure for establishing incapacity.
5. Resolution of the Cabinet of Ministers of Ukraine "On Approval of the Procedure for Organising Guardianship and Care of Incapacitated Persons": Defines the procedure for establishing guardianship and custody, rights and obligations of guardians.

Grounds for establishing parental guardianship

1. Physical disabilities: Guardianship may be granted to parents who have serious physical disabilities that limit their ability to care for themselves and require constant assistance.
2. Mental disorders: Guardianship may be granted to parents with mental disorders who have been declared incapacitated or partially incapacitated by a court on the basis of a medical report.
3. Other circumstances: Guardianship may be established in cases where parents are unable to make decisions regarding their life and health, property management, or if they are victims of violence, abuse or neglect.

The procedure for establishing guardianship over parents

1. Medical and social assessment: Parents applying for custody must undergo a medical and social examination, which confirms the presence of physical or mental disorders and determines the degree of disability or incapacity.
2. Filing an application for guardianship: An application for guardianship is filed with the court at the parents' place of residence. The application may be submitted by relatives, guardianship and custody authorities, medical institutions or other interested parties.
3. Court proceedings: The court considers the application, hears witnesses, experts and other interested parties. The court may also order additional expertise or request additional documents.
4. Making a decision on guardianship: After hearing the case, the court makes a decision on guardianship and appoints a guardian. The court's decision is binding.
5. Registration of guardianship: The court's decision on the establishment of guardianship is registered with the guardianship and custody authorities at the parents' place of residence. The guardian receives a certificate and assumes his or her rights and obligations.

Rights and obligations of guardians

• The right to represent the interests of the ward: The guardian has the right to represent the interests of the ward in all institutions, organisations and before individuals.
• The right to receive social benefits and privileges: A guardian has the right to receive social benefits and privileges provided for by law for guardians and persons with disabilities.
• The right to protect the rights of the ward: The guardian has the right to apply to the court, authorities and human rights organisations to protect the rights and interests of the ward.

The main responsibilities of guardians include:

1. Duty to provide care and support: The guardian is obliged to provide care, treatment, rehabilitation and social support to the ward.
2. Duty to manage the ward's property: The guardian is obliged to manage the ward's property in the ward's interests, preserve it and ensure its efficient use.
3. Duty of reporting: The guardian is obliged to report to the guardianship and trusteeship authorities on the use of the ward's property, receipt and expenditure of social benefits and other aspects of guardianship.

Social guarantees for persons under guardianship and guardians

1. Social benefits: Persons under guardianship are entitled to receive pensions, social assistance, compensation payments and other social benefits provided for by law.
2. Medical care: Persons under guardianship have the right to free medical care, rehabilitation services, sanatorium treatment and other medical services.
3. Housing and utility benefits: Persons under guardianship and their guardians are entitled to benefits for housing and utilities, including discounts and subsidies.
4. Right to education and employment: People under care have the right to education and employment, taking into account their capabilities and needs, as well as to support in finding a job.
5. Social services: Persons under guardianship and their guardians have the right to social services, including care, support in managing households, psychological assistance and other services.

Court practice

1. The case of establishing parental custody: The children filed an application with the court to establish custody of their parents, who had become incapacitated as a result of mental disorders. The court, having reviewed medical reports and heard from the parties concerned, decided to establish custody and appointed one of the children as the guardian.
2. A case of appeal against the actions of the guardian: Other relatives challenged the guardian's actions, claiming that he misused the wards' property and violated their rights. The court, having reviewed the evidence and heard witnesses, decided to change the guardian and appointed a new guardian to protect the wards' rights.
3. A case on the provision of social benefits: The parents under guardianship appealed against the refusal of the social security authorities to grant social benefits. Having considered the evidence and documents confirming the disability and the right to social benefits, the court ruled in favour of the wards and ordered the social security authorities to provide the appropriate payments.