Guardianship of parents

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Consultant # 1377

Lawyer

Ukraine / Kyiv

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Publication date: 24.07.2024

Guardianship of parents
 

• Introduction
   

Parental guardianship is an important legal form of support and protection for adults who, due to illness, old age or other circumstances, cannot take care of their rights and interests on their own. In this case, children or other relatives can take responsibility for the care and maintenance of an adequate standard of living for their parents. This process is regulated by law and includes certain legal procedures, rights and obligations of guardians. In this text, we will look at the main aspects of parental guardianship in Ukraine, including the legal framework, the procedure for appointing a guardian, the rights and obligations of a guardian, and liability for failure to fulfil the obligations.
 

Legal framework

• Constitution of Ukraine
   

The Constitution of Ukraine enshrines the fundamental rights and freedoms of citizens, including the right to social protection and assistance in case of inability to ensure an adequate standard of living due to age, illness or other circumstances. This provides the basis for the legislative regulation of guardianship and trusteeship of persons in need of assistance.
 

• Civil Code of Ukraine
   

The Civil Code of Ukraine (CCU) is the main legal act regulating guardianship and trusteeship. Chapter 5 of the CCU sets out the procedure for establishing guardianship, the rights and obligations of guardians, and the procedures for protecting the interests of persons under guardianship. The Code stipulates that guardianship is established over persons who have been recognised by a court as incapacitated or with limited capacity due to physical or mental disorders.
 

• The Law of Ukraine ‘On the Fundamentals of Social Protection of Labour Veterans and Other Elderly Citizens in Ukraine’
   

This law defines the basic provisions for the social protection of elderly citizens, including those in need of care. The law provides guarantees of social assistance, medical care and nursing care, which are important components of support for older people.
 

Procedure for establishing guardianship

1. Recognition of incapacity or limited capacity
2. 
   Appointment of a guardian
3. 
   Registration of guardianship
    

• Recognition of incapacity or limited capacity
   

The establishment of guardianship over parents begins with the recognition of their incapacity or limited capacity. This decision is made by the court on the basis of an application from relatives, guardianship authorities or other interested parties. A forensic psychiatric examination is appointed to determine the person's state of health and ability to take care of themselves. The expert opinion is an important piece of evidence in the case and serves as the basis for the court's decision.
 

• Appointment of a guardian
   

After a person has been declared incapacitated or of limited capacity, the court appoints a guardian. This can be one of the adult children, other relatives or even close friends who have the appropriate moral and material capabilities to perform the duties of a guardian. Importantly, the guardian cannot be a person who has a conflict of interest with the ward or who has previously been deprived of the right of guardianship for other reasons.
 

A guardian must submit to the court documents confirming his or her identity and a statement of readiness to perform the duties of a guardian. After checking these documents, the court decides to appoint a guardian and issues the relevant documents confirming this status.
 

• Registration of guardianship
   

After the appointment of a guardian, it is necessary to execute the relevant documents, including a court decision on the recognition of incapacity or limited capacity, a decision on the appointment of a guardian and other documents required for the registration of guardianship. These documents are submitted to the guardianship and trusteeship authorities, which register the guardianship and supervise the performance of the guardian's duties.
 

Rights and obligations of a guardian
 

• Rights of the guardian
   

A guardian has the right to represent the ward's interests in all state, medical, financial and other institutions. This includes the right to make decisions regarding medical care, treatment, choice of residence and other important aspects of the ward's life. The guardian also has the right to dispose of the ward's property, but with certain restrictions determined by law. For example, to sell or otherwise dispose of the ward's property, the ward's guardianship authority or court must obtain permission.
 

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, a guardian is entitled to social protection, including medical care, psychological support and other services necessary to perform the duties of a guardian.
 

• 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. They must act in the interests of the ward, protect their rights and ensure the proper use of their property. The guardian is obliged to report to the guardianship and custody authorities on the use of the ward's property, as well as on the fulfilment of their duties of care and support of the ward.
 

The guardian is also obliged to provide the ward with access to medical care, including the organisation of treatment, rehabilitation and disease prevention. In the event of a deterioration in the ward's health, the guardian must immediately contact medical institutions to provide the necessary assistance. In addition, the guardian is obliged to support the ward in social contacts, assist in solving personal matters and provide an opportunity to participate in public life.
 

Control and support from the state
 

• Guardianship and trusteeship authorities
   

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

• Support for guardians
   

The state provides various forms of support to guardians, 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 elderly care, property management, 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 can 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.