Guardianship over an elderly person: legal aspects and procedure

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Publication date: 25.07.2024

Guardianship over an elderly person: legal aspects and procedure

Guardianship over an elderly person is an important aspect of social protection that provides support and assistance to elderly people 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 review the main legal aspects and procedure for establishing guardianship over an elderly person, 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 framework 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 an elderly person

Guardianship over an elderly person is established in cases where he or she is unable to exercise his or her rights and obligations independently due to age, physical or mental disorders. 

The main grounds for guardianship include:

• Physical disorders: A guardianship may be established for an elderly person who has serious physical disabilities that limit their ability to care for themselves and require constant assistance.
• Mental disorders: A guardianship may be established for an elderly person with mental disorders who has been declared incapacitated or partially incapacitated by a court on the basis of a medical report.
• Other circumstances: A guardianship may be established in cases where an elderly person is unable to make decisions about his or her life and health, or property management, or if he or she has been the victim of violence, abuse or neglect.

The procedure for establishing a guardianship

The procedure for establishing guardianship over an elderly person includes several main stages:

1. Medical and social assessment: The first stage is a medical and social examination, which confirms the presence of physical or mental disorders and determines the degree of disability or capacity of the elderly person. The examination is carried out by licensed medical institutions.
2. Filing an application for guardianship: An application for guardianship is submitted to the court at the place of residence of the elderly person. The application may be filed by relatives, guardianship and trusteeship authorities, medical institutions or other interested parties. The application must state the grounds for guardianship and provide medical reports and other necessary documents.
3. Court proceedings: The court considers the application, hears witnesses, experts and other interested parties. The court may also order an additional examination or request additional documents to establish the fact of the elderly person's incapacity or limited capacity.
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. The court may also impose restrictions on the rights of the guardian if it is necessary to protect the rights and interests of the ward.
5. Registration of guardianship: The court decision on the establishment of guardianship is registered with the guardianship and trusteeship authorities at the place of residence of the elderly person. 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 ward's interests in all institutions, organisations and before individuals, including the right to apply to the court.
2. The right to receive social benefits and privileges: The guardian has the right to receive social benefits and privileges provided for by law for guardians and elderly persons.
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, taking into account his or her physical and mental needs.
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. This includes managing the ward's finances, property rights and other resources.
3. Duty to report: 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, as well as on the ward's health and care.

Social guarantees for older people and carers

Ukrainian legislation provides for a number of social guarantees for elderly people and their carers, which are 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 people and their carers are entitled to social services, including care, support in managing households, psychological assistance and other services.

Court practice

Court practice in elderly guardianship cases demonstrates real cases of dispute resolution and protection of the rights of older people. 

Here are some examples of court cases:

1. The case of establishing guardianship over an elderly person: Relatives filed an application with the court to establish guardianship over an elderly person 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 relatives as guardian.
2. A case of appeal against the actions of a guardian: An elderly person or his relatives challenged the actions of the guardian, claiming that the guardian misused the ward's property and violated his rights. The court, having reviewed the evidence and heard witnesses, decided to change the guardian and appointed a new guardian to protect the rights of the ward.
3. A case on the provision of social benefits: An elderly person or his guardian appealed against the refusal of the social security authorities to provide social benefits. Having considered the evidence and documents confirming the health status and the right to social benefits, the court ruled in favour of the plaintiff and ordered the social security authorities to provide the appropriate payments.