Guardianship over a disabled person of group 2: legal aspects and procedure

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Publication date: 24.07.2024

Guardianship over a disabled person of group 2: legal aspects and procedure

Guardianship over a disabled person of group 2 is an important aspect of social protection that provides support and care for persons with disabilities who, due to certain circumstances, cannot exercise their rights and obligations independently. In Ukraine, the law clearly regulates the procedure for establishing guardianship, defines the rights and obligations of guardians, and provides social guarantees for persons under guardianship. In this article, we will consider the main legal aspects and procedure for obtaining guardianship over a disabled person of group 2, 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 the guardianship of group 2 disabled persons 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 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 guardianship over a disabled person of group 2

Guardianship over a disabled person of group 2 is established in cases where the person is unable to exercise his or her rights and obligations independently due to physical or mental disorders. 

The main grounds for guardianship include:

1. Physical disorders: Guardianship may be established for persons with severe physical disabilities who require constant assistance and care.
2. Mental disorders: Guardianship can be established for persons with mental disorders who are declared incapacitated by a court on the basis of a medical report.
3. Other circumstances: A guardianship may be established in cases where a person with a disability is unable to make decisions about their life and health, or property management, or if they have been the victim of violence, abuse or neglect.

The procedure for establishing a guardianship

The procedure for establishing guardianship over a group 2 disabled person includes several main stages:

1. Medical and social assessment: A person applying for guardianship must undergo a medical and social examination that confirms the existence of a disability 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 place of residence of the person to be guardian. The application may be filed by relatives, guardianship and custody authorities, medical institutions or other interested persons.
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 guardianship is registered with the guardianship and trusteeship authorities at the place of residence of the person with disabilities. 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 the legislation of Ukraine. 

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 with disabilities and carers

Ukrainian legislation provides for a number of social guarantees for persons with disabilities and their carers, which are aimed at ensuring their social protection and financial support. 

The main social guarantees include:

1. Social benefits: Persons with disabilities are entitled to receive disability pensions, social assistance, compensation payments and other social benefits provided for by law.
2. Medical care: Persons with disabilities have the right to free medical care, rehabilitation services, sanatorium treatment and other medical services.
   Housing and utility benefits: Persons with disabilities and their carers are entitled to housing and utility benefits, including discounts and subsidies.
3. Right to education and employment: Persons with disabilities have the right to education and employment that takes into account their capabilities and needs, as well as to support in employment.
4. Social services: Persons with disabilities and their carers have the right to receive social services, including care, support in managing their household, psychological assistance and other services.

Court practice

Court practice in cases of guardianship of persons with disabilities of group 2 shows real cases of dispute resolution and protection of the rights of persons with disabilities. 

Here are some examples of court cases:

• The case of establishing guardianship over a group 2 disabled person: Relatives of a person with a disability filed an application with the court for guardianship. The court, having reviewed medical reports, documents confirming the disability, and having heard the parties concerned, decided to establish guardianship and appointed one of the relatives as guardian.
• A case of appeal against the actions of a guardian: A person with a disability appealed against the actions of his guardian, claiming that the guardian was misusing the ward's property and violating his 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 involving social benefits: A person with a disability appealed against the refusal of the social security authorities to provide social benefits. The court, having considered the evidence and documents confirming the disability and the right to social benefits, ruled in favour of the plaintiff and ordered the social security authorities to provide the appropriate payments.