Guardianship over the mother: legal aspects and procedure

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Ukraine / Kyiv

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Publication date: 24.07.2024

Guardianship over the mother: legal aspects and procedure

Guardianship over a mother is an important aspect of social protection and support, especially in cases where she is unable to exercise her rights and responsibilities independently due to age, physical or mental disorders. In Ukraine, legislation regulates the process of establishing guardianship, defines the rights and obligations of guardians, and provides social guarantees for persons under guardianship. This article examines the main legal aspects and procedure for establishing guardianship over a mother, including the legal framework, criteria for appointing a guardian, duties and rights of guardians, social guarantees and court practice.

Legal framework

The main legal acts regulating guardianship of the elderly in Ukraine are:

1. The Civil Code of Ukraine: Defines the legal basis for the establishment of guardianship and trusteeship, and the rights and obligations of guardians.
2. Family Code of Ukraine: Regulates 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 guardianship over the mother

Guardianship over a mother may be established in cases where she is unable to exercise her rights and obligations independently due to age, physical or mental disorders. 

The main grounds for establishing guardianship include:

1. Physical disorders: Guardianship may be granted to a mother who has serious physical disabilities that limit her ability to care for herself and require constant assistance.
2. Mental disorders: Guardianship may be granted to a mother with mental disorders who has 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 the mother is unable to make decisions about her life and health, or the management of her property, or if she has been the victim of violence, abuse or neglect.

The procedure for establishing guardianship over the mother

The procedure for establishing custody of a mother includes several main stages:

1. Medical and social assessment: The mother for whom guardianship is sought 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 custody is filed with the court at the mother's 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 decision on the establishment of guardianship is registered with the guardianship and custody authorities at the mother's place of residence. The guardian receives a certificate and assumes his or her rights and obligations.

Rights and obligations of guardians

Guardians have certain rights and obligations defined by Ukrainian law. 

The main rights of guardians include:

1. 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.
2. 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.
3. 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

Ukrainian legislation provides for a number of social guarantees for persons under guardianship and guardians aimed at ensuring their social protection and material support. 

The main social guarantees include:

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

Court practice in cases of establishing custody of the mother shows real cases of dispute resolution and protection of the rights of older persons. 

Here are some examples of court cases:

• The case of establishing custody of the mother: The children filed an application with the court to establish custody of their mother, 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 guardianship and appointed one of the children as guardian.
• A case of appeal against the actions of the guardian: Other relatives challenged the guardian's actions, claiming that he was misusing the ward's property and violating her rights. The court, having reviewed the evidence and heard witnesses, decided to change the guardian and appointed a new guardian to protect the ward's rights.
• A case on the provision of social benefits: A mother under guardianship appealed against the refusal of the social security authorities to grant social benefits. The court, having considered the evidence and documents confirming the disability and the right to social benefits, ruled in favour of the ward and ordered the social security authorities to provide the appropriate payments.