Guardianship over a person with a disability: legal aspects and procedure

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Ukraine / Kyiv

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Publication date: 26.07.2024

Guardianship over a person with a disability: legal aspects and procedure

Guardianship over a person with a disability is an important legal instrument that protects the rights and interests of persons who are unable to exercise their rights and perform their duties independently due to physical or mental disorders. If a person is unable to make decisions on their own, a guardian assumes responsibility for their care, medical care, property management and other vital needs. In this article, we will consider the main legal aspects of guardianship over a person with a disability in Ukraine, including the legal framework, the procedure for appointing a guardian, the rights and obligations of a guardian, and the court practice in such cases.

Legal framework

The main legal acts regulating guardianship of persons with disabilities 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 issues of family relations, including guardianship and custody of incapacitated or partially incapacitated persons.
   
• The 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 Psychiatric Care’: Defines the legal framework for the provision of psychiatric care, including the procedure for establishing incapacity.
   
• 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

A guardianship may be established in cases where a person is unable to exercise his or her rights and obligations independently due to:

1. Physical disabilities: For example, serious illnesses that make it difficult to care for themselves or make decisions.
    
2. Mental disorders: Including mental illnesses or disorders that lead to a loss of capacity.
    
3. Other circumstances: For example, if a person is a victim of violence, abuse or neglect, which requires intervention to protect their rights and interests.
    

The procedure for establishing a guardianship

The procedure for establishing guardianship over a person with a disability includes several main stages:

Medical and social expertise: An assessment of the person's health condition that can be carried out by the relevant medical institutions licensed to carry out medical and social expertise. The results of the examination are the basis for recognising a person as incapacitated or with limited capacity.

Filing an application for guardianship: The application is filed with the court at the place of residence of the person in need of guardianship. The applicants may be relatives, guardianship and trusteeship authorities or other interested persons. The application must state the grounds for guardianship and provide relevant medical reports.

Court proceedings: The court considers the application, hears the applicants, witnesses, experts and other interested parties. The court may also order an additional examination or request additional documents to clarify the person's health status.

Making adecision on guardianship: After hearing the case, the court makes a decision on the establishment of guardianship, appoints a guardian and establishes his or her rights and obligations. The court's decision is binding.

Registration of guardianship: The court's decision is registered with the guardianship and trusteeship authorities at the place of residence of the person in need of guardianship. The guardian receives a certificate and assumes his or her rights and obligations.

Rights and obligations of a guardian

A guardian has a number of rights and obligations determined by law:

• Represent the ward's interests in all institutions, organisations and before individuals.
   
• Manage the ward's property, store it and ensure its efficient use.
   
• To make decisions regarding medical care, treatment and other vital issues of the ward.
   

Responsibilities of theguardian:

• Provide proper care and support to the ward, including the organisation of medical care, rehabilitation and social support.
   
• To report to the guardianship and trusteeship authorities on the performance of their duties, the health status of the ward and the management of their property.
   
• Protect the rights and interests of the ward, including in courts and other institutions.
   

Court practice

Court practice in guardianship cases involving people with disabilities demonstrates real cases of dispute resolution and protection of the rights of such persons. Here are some examples of court cases:

• The case of the appointment of a guardian: Relatives filed an application with the court to appoint a guardian for an elderly person with mental disorders. The court, having reviewed medical reports and heard from the parties concerned, decided to appoint one of the relatives as a guardian.
   
• A case about changing the guardian: A person with a disability challenged the actions of his guardian, arguing 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 the establishment of custody of a child with a disability: The parents of a child with a disability applied for custody of the child due to their inability to provide proper care on their own. The court decided to establish custody and appointed a guardian who had the appropriate conditions to care for the child.