Guardianship of a person with a disability

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Consultant # 1377

Lawyer

Ukraine / Kyiv

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Publication date: 24.07.2024

Introduction. 

Guardianship of a person with a disability is an important form of social and legal support that ensures proper care, protection of rights and interests, and assistance in managing property and finances. This form of guardianship is necessary when a person is unable to meet his or her needs independently due to physical, mental or psychological limitations. This text covers the main aspects of guardianship of a person with a disability in Ukraine, including the legal framework, the procedure for guardianship, the rights and obligations of guardians, and state control and support.

Legal framework 

1. Constitution of Ukraine
    
    
2. Civil Code of Ukraine
    
    
3. Law of Ukraine ‘On Social Services’
    
    
4. Law of Ukraine ‘On Psychiatric Care’
    
    

The procedure for obtaining guardianship 

• Recognition of incapacity or limited capacity
   

The procedure for obtaining guardianship over a person with a disability begins with the recognition of his or her incapacity or limited capacity. This is done through a court process based on an application from relatives, guardianship authorities or other interested parties. During the court proceedings, a forensic psychiatric examination is appointed to determine the state of the person's mental health and their ability to make decisions independently and take responsibility for their actions.

• Appointment of a guardian
   

After a person is declared incapacitated or of limited capacity, the court appoints a guardian. A guardian may be an adult person with full legal capacity who has the appropriate moral qualities, health and ability to perform the duties of a guardian. These can be relatives, close friends or other persons who have expressed a desire to take responsibility for the care and support of a person with a disability. An organisation that provides social services can also be appointed as a guardian.

• Registration of guardianship
   

After the court appoints a guardian, it is necessary to draw up the relevant documents confirming the establishment of guardianship. This includes a court decision on the recognition of incapacity or limited capacity, a decision on the appointment of a guardian, and an act of acceptance and transfer if guardianship is established over a child. The guardian is obliged to submit these documents to the guardianship and trusteeship authorities for registration of guardianship. After that, the guardian acquires full rights and responsibilities in relation to the person with a disability.

Rights and obligations of a guardian 

• Rights of the guardian
   

The guardian has the right to represent the interests of the ward in all bodies and institutions, including courts, medical institutions, banks and other organisations. This includes the right to make decisions regarding treatment, rehabilitation, education and other aspects of the ward's life. The guardian also has the right to dispose of the ward's property, but with restrictions established by law. In particular, the sale or other transfer of the ward's property may only be carried out with the permission of the guardianship and trusteeship authorities or the court.
 

The guardian is entitled to compensation for caring for the ward, if provided for by law. Compensation may be provided in the form of cash payments, benefits or other types of support. In addition, the guardian is entitled to social protection, including medical care, psychological support and other services that help to fulfil the guardian's duties.

• Responsibilities of the guardian
   

The guardian is obliged to provide proper care for the ward, including food, medical care, clothing, accommodation and other necessary living conditions. He or she must act in the ward's best interests, ensure the ward's rights and protect him or her from any form of violence, exploitation or neglect. The guardian is also obliged to report to the guardianship and trusteeship authorities on the use of the ward's property and the performance of their duties.
 

One of the guardian's important responsibilities is to ensure that the ward has access to medical and psychological care. This includes arranging regular medical examinations, treatment and rehabilitation, as well as support in the event of a deterioration in health. The guardian must ensure that the ward has access to education and vocational training, if it meets his or her needs and capabilities.

Control and support from the state

• Guardianship and trusteeship authorities
   

The guardianship and custody authorities control the performance of the guardian's duties. They have the right to inspect the ward's living conditions, the quality of care and the performance of the guardian's duties. If violations are detected, the guardianship authorities may decide to replace the guardian, set additional conditions for guardianship, or apply to the court to bring the guardian to justice.

• Support for guardians
   

The state provides various forms of support to carers, including financial assistance, benefits and social services. This may include payments for the care of the ward, provision of medicines, psychological support and counselling. Guardians are also entitled to free medical care, rehabilitation services and other types of assistance necessary to perform their duties.
 

The state also provides education and training for guardians, in particular on caring for persons with disabilities, managing their property, legal protection and other aspects of guardianship. This helps to improve the qualifications of guardians and ensures an adequate level of care for the wards.

Responsibilities of guardians 

• Administrative liability
   

Guardians may be held administratively liable for breach of their duties, including for inadequate care, failure to fulfil their obligations to provide for the ward, or violation of the ward's rights. Administrative liability may include the imposition of fines, deprivation of guardianship rights or other measures.

• Criminal liability
   

In cases where the actions of a guardian lead to serious consequences, such as harm to the health or life of the ward, the guardian may be held criminally liable. This may include imprisonment, prohibition from holding certain positions or other criminal penalties. Criminal liability applies in cases where the guardian intentionally or through gross negligence violates the rights and interests of the ward.