Publication date: 30.11.2024
Lawyer with 15 years of legal experience, specialization: family and civil law, inheritance, contract law, criminal cases, administrative cases, cases involving foreigners, migration law
Establishing guardianship for a person with disabilities is a vital legal mechanism that ensures their social and legal protection. This process is governed by the Civil Code of Ukraine (CCU), the Family Code of Ukraine (FCU), the Law of Ukraine "On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine," and several subordinate legal acts. Guardianship is mandatory if a person has been declared legally incapacitated or partially incapacitated by a court due to their disability and requires constant care.
What Is Guardianship, and Why Is It Necessary?
Guardianship is established when a person cannot independently exercise their rights or needs assistance in managing property, financial matters, and daily life.
The main purposes of guardianship are:
- Ensuring adequate care for the person with disabilities.
- Protecting the property and personal rights of the ward.
- Representing their interests in government institutions and other organizations.
Special attention is needed for guardianship over people with disabilities who lack close relatives or whose relatives cannot fulfill the role of guardians.
Question
Who can be a guardian for an adult with a disability?
Answer
A guardian can be any adult who has no criminal record, is physically and mentally capable of performing the duties of a guardian and has appropriate living conditions. Priority is given to relatives if they are willing to take on such obligations.
Main Types of Guardianship
Ukrainian legislation provides for two primary types of guardianship:
- Guardianship — established over individuals declared legally incapacitated by a court.
- Custodianship — applies to persons with partial legal incapacity.
Guardianship involves full control over the ward’s actions and decision-making on their behalf. In the case of custodianship, the ward can independently perform certain actions, but with the consent of their custodian.
Legal Foundations
Guardianship is regulated by the following key legal acts:
- The Civil Code of Ukraine (Chapter 6) — governs the procedure for declaring a person legally or partially incapacitated and defines the rights and duties of guardians.
- The Family Code of Ukraine — regulates the protection of the rights of family members in need of guardianship.
- The Law of Ukraine "On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine" — defines the rights of persons with disabilities and guarantees their social protection.
- Cabinet of Ministers Resolution No. 866 of 24.09.2008 — details the procedure for establishing guardianship and monitoring the activities of guardians.
Step-by-Step Procedure for Applying for Guardianship
Establishing guardianship is a multi-step process that includes several key stages:
- Document Preparation. The following documents must be collected to begin the process: The passport and tax identification number of the prospective guardian. A medical certificate of the candidate’s health (Form No. 083/o). The MSEC (Medical-Social Expert Commission) report confirming the disability group of the individual. A certificate of no criminal record. Documents confirming the right to reside in the respective accommodation. Character references from the candidate’s workplace and residence.
- Filing the Application. The guardianship application is submitted to the guardianship authority at the place of residence of the person with disabilities.
- Housing Conditions Assessment. Representatives of the guardianship authority visit the candidate’s home to evaluate whether it meets the necessary conditions for accommodating the ward.
- Court Proceedings. If the person is declared legally incapacitated, guardianship can only be established by a court decision. The court considers: The physical and psychological condition of the candidate. The absence of conflicts of interest. The wishes of the person with disabilities (if possible).
- Guardianship Appointment. After completing all procedures, the guardianship authority issues a decision to appoint the guardian.
A guardian has the right to:
- Represent the ward’s interests in all government and non-government organizations.
- Perform legally significant actions on behalf of the ward.
- Receive social assistance and payments to meet the needs of the ward.
The responsibilities of a guardian include:
- Ensuring proper care for the ward.
- Managing the ward’s property in their best interests.
- Regularly submitting reports on the use of the ward’s funds to the guardianship authority.
Specifics of Guardianship for Adults
Guardianship for adults requires additional procedures, including:
- A medical opinion on the ward’s health condition.
- A court decision declaring the individual legally incapacitated.
Guardianship authorities have the right to monitor the guardian’s activities, including through annual reports on the use of the ward’s funds.
Question
Can a foreign citizen become a guardian of a person with disabilities in Ukraine?
Answer
Yes, a foreign citizen can be appointed as a guardian provided they reside permanently in Ukraine and meet the legal requirements (including having a residence permit and meeting the criteria set by the guardianship authorities).
Key Stages of the Procedure
Housing Assessment: Verification of the guardian’s living conditions.
Court Proceedings: Establishment of legal incapacity status.
Issuance of Decision: Official appointment of the guardian by the guardianship authority.
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Establishing guardianship is an essential step to ensure the rights and dignity of a person with disabilities. While the procedure is complex, strict adherence to legal requirements helps guarantee the necessary protection for the ward. If you encounter difficulties at any stage, seek advice from a lawyer or representatives of the guardianship authority.
