Arranging for care for an elderly person: legal aspects and procedure

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Publication date: 25.07.2024

Arranging for care for an elderly person: legal aspects and procedure

Care for an elderly person is an important component of social protection, which provides support and assistance to the elderly. Arranging care includes legal aspects, such as establishing the legal status of the caregiver, processing social benefits, and protecting the rights of the elderly person. In Ukraine, legislation clearly regulates the procedure for providing care, the rights and obligations of caregivers, and social guarantees for older people. In this article, we will look at the main legal aspects and procedures for arranging care for an elderly person, including the legal framework, the procedure for establishing care, the rights and obligations of caregivers, social guarantees, and court practice.

Legal framework

The main legal acts regulating elderly care in Ukraine are:

• The Civil Code of Ukraine: Defines the legal basis for the establishment of guardianship and trusteeship, and the rights and obligations of guardians.
• Family Code of Ukraine: Regulates family relations, including guardianship and custody of incapacitated and partially incapacitated persons.
• 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.
• Law of Ukraine "On Social Services": Defines the procedure for the provision of social services to older people, including care and support.
• Resolution of the Cabinet of Ministers of Ukraine "On Approval of the Procedure for Provision of Social Services": Defines the procedure for the provision of social services, including care for older people.

Grounds for establishing care

Care for an elderly person can be established in cases where they are unable to exercise their rights and obligations independently due to age-related changes, physical or mental disorders. 

The main grounds for establishing care include:

1. Physical disorders: Care may be ordered for an elderly person who has a serious physical impairment that limits their ability to care for themselves and requires constant assistance.
2. Mental disorders: Care may be ordered for an elderly person with a mental disorder who has been declared incapacitated or partially incapacitated by a court of law based on a medical report.
3. Other circumstances: Care may be ordered in cases where an elderly person is unable to make decisions about their life and health, or the management of their property, or if they have been the victim of violence, abuse or neglect.

The procedure for arranging care

The procedure for arranging care for an elderly person includes several main stages:

1. Health assessment: The first step is a medical examination of the elderly person by a doctor or a medical commission. This examination determines the need for care and the degree of disability or incapacity.
2. Submitting an application for care: The interested person or relatives submit an application to the social security authorities or to the court at the place of residence of the elderly person. The application must state the grounds for establishing care and include medical reports and other necessary documents.
3. Court proceedings (if necessary): If guardianship or custody of an elderly person is to be established, 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 the establishment of care: After reviewing the case (or based on the results of a medical examination), the social security authorities or the court make a decision on the establishment of care and appoint a caregiver. The court decision is binding.
5. Registration of care: The decision on the establishment of care is registered with the social security authorities or in the relevant state registers. The carer receives a certificate and assumes his/her rights and obligations.

Rights and obligations of carers

Caregivers have certain rights and obligations defined by Ukrainian law. 

The main rights of carers include:

1. The right to represent the interests of the ward: The carer 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 carer has the right to receive social benefits and privileges provided for by law for carers and elderly people.
3. The right to protect the rights of the ward: The carer 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 carers include:

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

Social guarantees for older people and carers

Ukrainian legislation provides for a number of social guarantees for older people and carers aimed at ensuring their social protection and financial support. 

The main social guarantees include:

1. Social benefits: Older persons are entitled to receive old-age pensions, social assistance, compensation payments and other social benefits provided for by law.
2. Medical care: Older people are entitled to free medical care, rehabilitation services, sanatorium and resort treatment and other medical services.
3. Housing and utility benefits: Older people and their carers are entitled to housing and utility benefits, including discounts and subsidies.
4. Social services: Older persons and their carers are entitled to social services, including nursing care, support in housekeeping, psychological assistance and other services.

Case law.

The case law on elderly care shows real cases of dispute resolution and protection of the rights of older people. 

Here are some examples of court cases:

1. The case of appointing a carer: The relatives of an elderly person filed an application with the court for the appointment of a carer. The court, having reviewed medical reports, documents confirming the health status, and having heard the parties concerned, decided to appoint a carer.
2. A case of appealing against the actions of a carer: An elderly person challenged the actions of his caregiver, claiming that the caregiver was misusing the ward's property and violating his rights. The court, having reviewed the evidence and heard witnesses, decided to change the carer and appointed a new carer to protect the rights of the ward.
3. A case involving social benefits: An elderly person appealed against the refusal of the social security authorities to provide social benefits. The court, having considered evidence and documents confirming the health status and the right to social benefits, ruled in favour of the plaintiff and ordered the social security authorities to provide the appropriate payments.