Legal analysis provides for the following:

1. Representation of senior citizens who partially/fully lost legal capacity:

–       restriction of civil capacity of individual, legal consequences;

–       recognition of individual’s incapacity, legal consequences;

–       procedure for consideration of court proceedings on recognition of individual as partially capable/incapable;

–       guardianship and curatorship over partially capable/incapable individuals, rights and obligations of a guardian and curator (representation under the law);

–       legal forms of senior citizens care, representation of persons on the basis of power of attorney or other civil agreement (representation on the basis of power of attorney);

2. State representation and control over guardianship and curatorship, assurance of social protection of senior citizens or those who partially/fully lost legal capacity.

3. Findings

On the first issue:

An individual may be recognized partially capable/incapable in cases established by the law. Thus, the issue as to senior citizens is not singled out.

Restriction of legal capacity:

According to Article 36 of the Civil Code of Ukraine (hereinafter – the „Civil Code„) measures as to restriction of legal capacity shall be taken if the person suffers from a mental disorder that significantly affects his/her ability to realize the significance of his/her actions and (or) control them or if he/she abuses alcohol, drugs, toxic substances, gambling and etc. and whereby bringing himself/herself or his/her family, as well as other persons he/she has to maintain by the law in a difficult financial situation. Article 37 of the Civil Code provides for legal consequences of individual’s civil capacity restriction. In particular an individual with restricted civil capacity is subject to curatorship. An individual with restricted civil capacity may carry out only inessential (daily) transactions. According to Article 31 of the Civil Code a transaction shall be considered as inessential (daily) one if it meets social needs of a person, complies with his/her physical, moral or social development and relates to the object with low value. The definition „inessential (daily) transaction“ has an evaluative nature, has no legally established monetary value (cost) thresholds and includes administration of daily needs. These may be the needs for food, mental needs, informational needs, etc. . Transactions regarding disposal of property and other transactions that go beyond inessential (daily) transactions shall be carried out by a person whose civil capacity is restricted with the consent of a custodian.

Recognition of an individual’s incapacity:

According to Article 39 of the Civil Code an individual may be recognized by court as incapable if he/she is not capable to perceive and/or control his/her actions due to chronic and stable mental disorder. According to P.1 of Article 40 of the Civil Code an individual shall be recognized as incapable from the effective date of the court decision thereon. The legal consequences of recognizing a person as incapable are established by Article 41 of the Civil Code. In particular, an incapable individual is subject to guardianship. An incapable individual shall have no right to carry out any transactions. A guardian shall carry out transactions on behalf and in favor of an incapable individual. A guardian shall bear liability for the damages caused by an incapable individual. Procedure for restriction of legal capacity shall be established through court procedure and is possible only for adults (i.e. persons under 18 years old).

Court proceedings:

Court proceedings on civil capacity restriction of an individual shall be held through civil proceedings and settled by Chapter 2 of Paragraph 4 of the Civil Procedure Code of Ukraine (hereinafter – the „Civil Procedure Code„). Article 237 of the Civil Procedure Code states that the claim on civil capacity restriction of an individual may be filed by the members of his/her family, a guardianship and custodianship body, addiction or psychiatric institution. According to the Supreme Court of Ukraine Plenum Resolution, dated 28 March 1972 No. 3 „On Judicial Practice in Cases Regarding Recognition of a Citizen as Partially Capable or Incapable“ while preparing the case for court proceedings the court shall request from an applicant to provide information about mental illness, dementia or abuse of alcohol or drugs. Information about mental illness may include health certificates, abstract of medical record and other documents issued by the medical centers. In cases on recognition of citizens partial legal capacity such data may include acts of the police and public organizations, decisions of comrades’ courts and other proof evidencing the facts of abuse of alcohol or drugs, as well as that a citizen brings himself/herself and his/her family in a difficult financial situation. According to Article 239 of the Civil Procedure Code the court upon the availability of sufficient data about mental health disorder of an individual shall appoint forensic psychiatric examination to establish a diagnose of his/her mental state. Based on the results of consideration of the case in accordance with Article 241 of the Civil Procedure Code the court when approving the decision on restriction of individual’s civil capacity (including restriction or deprivation a minor person of the right to dispose of his/her income at his/her discretion) or recognition of an individual’s incapacity shall appoint him/her a guardianship or custodianship and upon the recommendation of a guardianship or custodianship body the court shall appoint him/her a guardian or a custody.

Representation under the law (a guardianship and custodianship):

Representation is one of the forms of performing by citizens and legal entities of their civil rights and obligations. Pursuant to Articles 37, 39 of the Civil Code persons with restricted legal capacity or those who are deemed incapable are subject to guardianship/custodianship. Article 242 of the Civil Code refers to events of so-called mandatory representation, which in this case is called „representation under the law“ according to which a guardian shall be a legal representative of an infant and an individual recognized incapable. According to the Decree No. 34/166/131/88, dated 26 May 1999, of the State Committee of Ukraine on Family and Youth Matters, Ministry of Education of Ukraine, Ministry of Health of Ukraine, Ministry of Labour and Social Policy of Ukraine „On Approval of a Guardianship and Custodianship Regulations” (hereinafter – the „Decree„) a guardianship (custodianship) is a special form of state care for the minor children who are left without parental care and adults who need help to ensure their rights and interests. Paragraph 2 of clause 1.2 of the Decree states that a guardianship (custodianship) is appointed for the protection of personal property rights and interests of adults who are not able to exercise their rights and fulfill their duties for health reasons. Usually, guardians/custodians may be close relatives or persons currently residing with incapable/partially incapable persons or other persons who meet the requirements specified by the laws and regulations. Section 4 of the Decree provides for the rights and obligations of guardians/custodians regarding the representation of their persons under care, in particular:

• guardians (custodians) shall have the right to manage the property of their persons under care in favor of the latter.
• guardians while performing rights and obligations of their persons under care shall enter into agreements on behalf of and in the interests of such persons acting as their legal representatives in accordance with the effective legislation.
• custodians over the persons that are partially capable due to abuse of alcohol or drugs give these persons consent to enter into agreements and dispose of property.
• a guardian shall have no right to enter into agreements without the consent of a guardianship and custodianship body and a custodian shall have no right to give consent to conclude such agreements if they go beyond the daily agreements (such agreements are contracts requiring notarial certifying and special registration, contracts on waiver of property rights belonging to a person under care, division of property, division, exchange and sale of residential area, as well as issuance of written commitments, etc.).

According to P. 3 of part 1 of Article 42 of the Civil Code a document certifying a guardian/custodian’s rights to exercise his/her powers as to representation of a person under care shall be a decision on appointment of a guardian, custodian or guard of the inheritance property.

Representation on the Basis of Power of Attorney or Other Civil Transaction:

It should be noted that there are other forms of representation of senior citizens, in particular those that are capable but due to their age need constant continuous care. In particular, according to the Civil Code of Ukraine care for senior citizens may be conducted in a form of lifelong maintenance. Under the lifelong maintenance (care) agreement one party (an alienator) shall transfer residential building, a flat or part thereof, other real estate or movables of significant value into ownership to the other party (a recipient), in return a recipient shall be obliged to provide a lifelong maintenance to and/or care for an alienator (Article 744 of the Civil Code). It should be noted that the lifelong maintenance (care) agreement shall be concluded in writing and certified by a notary. One of the forms of representation is a nursing guardianship over senior citizens that is formalized in the event if they do not suffer from certain mental disorders but they are just sick and unable to care for themselves independently. According to clause 2.3 of the Decree such guardianship can be effected only in case of statement from a person confirming that he/she agrees to be cared for. Such person may refuse guardianship at any time by writing a respective statement. In certain cases senior citizen may authorize a representative to exercise his/her rights by issuing a power of attorney in the representative’s name. According to Article 244 of the Civil Code representation based on the agreement may be performed under a power of attorney.

Power of attorney is a written document issued by one person to another for representation before third parties. A power of attorney shall correspond to the form in which a transaction shall be concluded under the law. A power of attorney issued under the reassignment procedure shall be certified by a notary (p. 1, 2 of Article 245 of the Civil Code). Explanatory letter of the Ministry of Justice of Ukraine, dated 22 January 2014, states that the text of a power of attorney shall contain a place and date on which it is made (signed), surnames, names, patronymic (full name of legal entity), place of residence (registered address for legal entity) of a representative and a person that is represented, and if necessary their positions. A power of attorney issued for carrying out transactions on disposal of property shall also contain a representative’s registration number of a taxpayer record card (tax number). Powers of attorney issued to attorneys at law may specify their status and membership in the Bar Association (if an attorney at law is a member of the Bar Association). According to Article 247 of the Civil Code term of power of attorney shall be specified in a power of attorney. The term of a power of attorney shall be indicated in words and determined for years, months, weeks, days and cannot be determined by occurrence of any event. A power of attorney without indication of the date of its certifying shall be void. It should be noted that termination of the notarized powers of attorney, as well as powers of attorney issued under the reassignment procedure is subject to mandatory registration in the Unified Register of Powers of Attorney according to the procedure specified by the Regulation on the Unified Register of Powers of Attorney approved by the Ministry of Justice of Ukraine, dated 28 December 2006, No. 111/5. As to powers of attorney issued outside Ukraine, such documents require legalization for further use on the territory of Ukraine. Since Ukraine and Germany joined the Hague Conference on Private International Law Abolishing the Requirement for Legalization for Foreign Public Documents, such power of attorney needs to be apostilled only to be valid on the territory of Ukraine.

On the second issue:

Persons who are restricted in their legal capacity shall also be represented by state through the relevant competent authorities, by exercising by them of authoritative powers. Thus, the main bodies that controls and carries out record-keeping of persons who are restricted in their legal capacity or incapable, are a guardianship and custodianship body and social welfare bodies, which according to paragraph 4 of clause 1.4 of the Decree carry out activity on provision of care for, social and medical services to senior citizens, disabled persons and children with physical and mental development who need this. According to paragraph 2 of Article 121 of the Constitution of Ukraine and Article 36-1 of the Law “On Public Prosecution”, dated 05 November 1991, the Public Prosecution Office shall have a representative capacity in courts, in particular, representation of a citizen and the state in court in cases specified by the law. According to Article 36-1 of the Law of Ukraine “On Public Prosecution“ the Public Prosecution Office is obliged to represent a citizen or the state in court that is performance by prosecutors on behalf of the state of procedural and other actions aimed at protection of interests of a citizen or the state in court in cases specified by the law. The grounds for representation of a citizen in court is his/her inability due to physical condition, minor age, senior age, incapacity or partial legal capacity to protect his/her violated or disputed rights or exercise procedural powers by himself/herself. These grounds shall be confirmed by a prosecutor by providing the court with relevant evidences. A prosecutor shall have the right in the order stipulated by the procedural legislation to:

1) apply to court with claims (statements, applications);

2) intervene in proceedings commenced at a suit (statements, applications) of other

persons at any stage of the proceedings;

3) initiate a review of court decisions including those in the case that are commenced onclaims (statements, applications) of another person;

4) participate in the proceedings.

The state shall control the activity of guardians and custodians, in particular, according to clause 4.11 of the Decree guardians (custodians) shall annually not later than February 1 submit to a guardianship and custodianship body a report on their activities for the previous year as to protection of rights and interests of persons under care, as well as on keeping of property and dwelling owned by them. At the request of a guardianship and custodianship body guardians (custodians) shall submit reports within another period defined by them. After termination of a guardianship and custodianship guardians (custodians) shall submit general reports on their activities. Clause 4.13 of the Decree states that actions of guardians (custodians) may be appealed by any person (including a person under care) to a guardianship and custodianship body at a place of residence of a person under care. Control over guardians and custodians’ activity shall be made by a guardianship and custodianship body involving civil society by planned visits of persons being under a guardianship (custodianship). Frequency of visits shall be set by individual schedule but at least once a year except for the first inspection that is conducted after three months as of the starting date of a guardianship and custodianship. If necessary, review of audit results shall be submitted to the meeting of the custodians’ board to take appropriate measures. According to clause 5.3 of the Decree a guardianship and custodianship body at its own initiative, at the request of persons under care, governmental or non-governmental organizations, as well as pursuant to reasonable statements of any persons may release a guardian or custodian from performance of his/her obligations if it finds out that a guardian or custodian does not perform his/her obligations properly.

Findings:

Considering the above the effective laws and regulations of Ukraine provides for a special procedure as to representation of incapable senior citizens, which is possible only in the form of representation under the law that is in appointing of persons as guardians/custodians only on the basis of court decision or by a guardianship and custodianship body that provides further control over performance by the latter of its obligations as to persons under care representation.

Kyrylo Kazak

Partner at KPD Consulting Law Firm

Ukraine