Guardianship over parents: legal aspects and procedure

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Ukraine / Kyiv

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Publication date: 26.07.2024

Guardianship over parents: legal aspects and procedure

Parental guardianship is an important mechanism that protects the rights and interests of elderly people or those who have lost the ability to take care of themselves due to physical or mental disorders. In such cases, the guardian assumes the responsibility for care, medical care, property management and other life issues. Establishing guardianship over a parent requires compliance with certain legal procedures and requirements. In this article, we will review the main legal aspects of parental guardianship in Ukraine, including the legal framework, the process of establishing guardianship, the rights and obligations of guardians, and the court practice in such cases.

Legal framework

The main legal acts regulating parental custody in Ukraine are:

• The Civil Code of Ukraine: Defines the general provisions on guardianship and custody, the rights and obligations of guardians, and the procedure for establishing guardianship.
   
• Family Code of Ukraine: Regulates legal relations within the family, including guardianship of incapacitated or partially incapacitated persons, who may also be parents.
   
• The Law of Ukraine ‘On Psychiatric Care’: Defines the procedure for the provision of psychiatric care and the establishment of incapacity.
   
• Resolution of the Cabinet of Ministers of Ukraine ‘On Approval of the Procedure for Organising Guardianship and Care of Incapacitated Persons’: Regulates the procedure for establishing guardianship and custody, rights and obligations of guardians.
   

Grounds for establishing parental guardianship

Guardianship over parents may be established in cases where they are unable to take care of their own needs due to old age, illness or other circumstances. 

The main grounds include:

1. Physical disabilities: For example, illnesses or health conditions that make it impossible for them to care for themselves or make decisions.
    
2. Mental health conditions: Including mental illnesses or disorders that result in a loss of capacity.
    
3. Other circumstances: For example, loss of ability to work, lack of livelihood or other life situations that require assistance and protection.
    

The procedure for establishing guardianship over parents

The procedure for establishing guardianship includes several main stages:

• Medical and social assessment: The first step is to conduct a medical and social examination that determines the health status of the parents and their ability to live independently. The examination is carried out by licensed medical institutions and is the basis for further proceedings.
   
• Filing an application for guardianship: An application for guardianship is submitted to the court at the place of residence of the parents or the applicant. Applicants may be children, other relatives or guardianship and custody authorities. The application must contain the grounds for the establishment of guardianship, the results of a medical examination and other necessary documents.
   
• Court proceedings: The court considers the application, hears the applicants, witnesses, experts and other interested parties. The court may order additional expertise or request additional documents to clarify the circumstances of the case.
   
• Making a decision on the establishment of 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 and is subject to registration with the guardianship and trusteeship authorities.
   
• Registration of guardianship: After a court decision on the establishment of guardianship is issued, the guardianship must be registered with the guardianship and custody authorities. The guardian receives a certificate confirming his or her authority.
   

Rights and obligations of a guardian

The guardian has a number of rights and obligations towards the ward:

1. Represent the ward's interests in all institutions, organisations and before individuals.
    
2. Manage the ward's property, preserve it and ensure its effective use.
    
3. 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 participation in court proceedings, if necessary.
   

Court practice

Case law on parental custody includes real-life cases that demonstrate the importance of proper legal regulation of this issue:

The case of appointing a guardian for an elderly father: The children applied to the court to appoint one of them as a guardian for their father, who suffers from dementia. The court, having considered medical reports and heard witnesses, decided to appoint a guardian.

The case of changing the guardian: The parents applied for a change of guardian due to the negligence of the previous guardian. The court, having considered the evidence and heard witnesses, decided to change the guardian and appointed a new one.

A case of appealing against the actions of a guardian: The ward challenged the actions of the guardian, claiming that the guardian was misusing his property. The court found that the guardian's actions were unlawful and ordered him to pay damages.