In Vietnam, adults cannot be automatically represented by reason of their age.  Incapacity of an adult is a reason for being represented by his/her relatives or spouse. However, a court’s decision determining and declaring the adult as losing his/her capacity for civil acts is required before such representation. Once an adult is declared in the court’s decision as incapacity, his/her relative or spouse is automatically represented.

 By way of background, the Civil Code of Vietnam No. 33/2005/QH11 dated 14 June 2005 (“Civil Code”) and the Marriage and Family Law No. 22/2000/QH10 dated 9 June 2010 (“Marriage and Family Law”) of National Assembly are the key regulations governing the legal representation of individuals who are unable to act on their own behalf.

 Article 141, Civil Code sets out three kinds of legal representative for individuals, namely, the father or mother with respect of a minor, the guardian with respect to a ward, and the person appointed by a court with respect to a person with restricted capacity for civil acts.  Amongst which, the term “guardian” is interpreted as containing the natural guardian and the appointed guardian.  The natural guardian of adults [1] may be their relatives or their spouse. 

 Article 22, Civil Code determines that a court shall, based on the opinion of an authorized examination organization and upon the petition of an individual with related rights or interest, issue a decision to declare a loss of capacity for civil acts in respect of an individual who is incapable of being aware of, or controlling, his or her own acts due to any mental or other illness. For such a case, all civil transactions of an individual who has lost the capacity for civil acts shall be established and performed by his or her legal representative.

 In line with Article 62, Civil Code, the determination of natural guardian shall follow the statutory orders as below:

• Where a wife has lost her capacity for civil acts, the husband shall be the guardian; if a husband has lost his capacity for civil acts, the wife shall be the guardian.
• Where both parents have lost their capacity for civil acts, or where one parent has lost the capacity for civil acts, or where one parent has lost the capacity for civil acts and the other parent fails to satisfy all the conditions to act as guardian then the eldest child shall be the guardian; if the eldest child fails to satisfy all conditions to be the guardian, the next eldest child shall be the guardian.
• Where an adult who has lost his or her capacity for civil acts does not have a spouse or children, or his or her spouse or children all fail to satisfy all conditions to be a guardian, the parents of that adult shall be the guardian.

For natural guardian, no additional authorization or power of guardianship is required.  In practice, to enable a person act on behalf of his or her spouse or relative who is unable to perform all civil transactions as declared by a court’s decision, he/she only needs to provide evidence proving that he/she is the natural guardian of the ward.  Such evidence may be the court decision and marriage certificate or birth certificate, etc.

 The power of guardianship is applied just in case of the appointed guardian.  Pursuant to Article 63, Civil Code, where an individual who has lost his or her capacity for civil acts does not have a natural guardian, the people’s committee of the commune, ward or township in which the ward resides (here after referred as “People’s Committee”) shall be responsible to appoint a guardian or request a charitable organization to undertake the guardianship.  Such appointment will be in the form of a Guardianship Recognizing Decision (“Quyet dinh cong nhan viec giam ho” in Vietnamese).

To obtain such authorization (hereafter referred as “Guardianship Recognizing Decision”), the appointed guardian shall summit an application and the guardian-appointing paper which shall be made by the guardian appointer(s).  Appointers may be the blood brother or sister; parental grandparents or maternal grandparents or others.  In addition, the People’s Committee has the right to request a charitable organization to undertake the guardianship if needed.

A part from the foregoing, together with the Guardianship Recognizing Decision, if the ward has his/her own properties, the guardian appointer must make a list of such properties, clearly stating their conditions, which must be signed by the guardian appointer and the appointed guardian. Such list shall be made in 3 copies, one of which to be archived at the People’s Committee which the guardianship is registered, one to be handed to the guardian and one to the guardian appointer.

Registration Of The Guardianship

As mentioned above, the People’s Committee where the adult resides is entitled to issue the certificate of authorization. Notary is not competent to do so. Within 5 days from the date of submission of a duly application dossier, the People’s Committee shall register the guardianship. Where it is necessary to make verification, the above-said time limit may be prolonged for 5 days at most. Such registration shall be recorded in the Guardianship Registration Books (“So dang ky giam ho” in Vietnamese) and the Guardianship Recognizing Decision.  The Guardianship Recognizing Decision will be granted to the guardian appointers and appointed guardians, each with an original thereof. Their duplicates of this decision shall be issued at the request of guardians and guardian appointers. 

The registration of guardianship between Vietnamese citizens and foreigners who are both residing in Vietnam shall be made at the provincial/municipal Justice Services of the localities where the guardians or their wards reside with a similar procedure. After the registration of guardianship, the provincial/municipal Justice Services shall send to the People’s Committee where the guardians and their wards reside the duplicates of Guardianship Recognizing Decision for supervising the guardianship.

During the process of registering the guardianship and obtaining the Guardianship Recognizing Decision, no additional approval by a witness is required.

Article 59. 1, Civil Code which determines that the relative of a ward shall be responsible to appoint a representative to act as supervisor[2] of a guardianship in order to monitor, activate and inspect the guardian in the performance of the guardianship and to consider and resolve, in a timely manner, any proposal or recommendation of the guardian in relation to the guardianship.

A Guardianship Recognizing Decision does not list out representation for specific issues. It just simply provides that the guardian has full rights and obligations of guardians in relation to his or her ward under the laws. That means if a guardian has got a certificate of authorization, he or she can represent for all issues relating the ward including financial issues or health care or residence (detention) or mail or contacts, namely:

1. To take care of and to ensure the treatment of illness of the ward.
2. To represent the ward in civil transactions.
3. To manage the property of the ward
4. To protect the legal rights and interests of the ward.

Both People’s Committee and provincial/municipal Justice Services which issued the Guardianship Recognizing Decisions will control such already existing decisions. 

The People’s Committee has obligation to sum up the status situation and statistical data and report them to the district- level People’s Committees biannually and annually while provincial/municipal Justice Services shall report the same to the Justice Ministry.

Upon request, the government authorities which issued Guardianship Recognizing Decisions can withdraw such decisions in the following categories:

1. The guardian no longer satisfies all of the conditions of a guardian under the laws [3];
2. A guardian being an individual dies or is declared by a court to be a missing person, or a guardian being an organization terminates its operation;
3. The guardian commits a serious breach of his or her obligations as guardian;
4. The guardian proposes that he or she be replaced and there is another person who agrees to act as guardian.

 The procedure to withdraw a Guardianship Recognizing Decision shall be performed in 02 steps:

Step 1: the guardianship termination requesters shall submit an application dossier for termination of the exist Guardianship Recognizing Decision.  Result of this step will be a Decision Recognizing the Guardianship Termination which normally be issued within 2 days from the date of full receipt of the dossier.

Step 2: the guardian appointer(s) shall re-submit an application dossier for obtaining a new Guardianship Recognizing Decision for the new guardian as specified above.

Governmental authorization office

There exists the office for civil status, the Department of Justice. At the ward level, the People’s Committee of a ward/commune will be the office in charge of such authorization matters.

German certificate of authorization

Pursuant to Article 6, Decree 158/2005/ND-CP on Civil Status Registration and Management dated 27 December 2005 of the Government, to be recognized by the law in Vietnam, a certificate of authorization shall be consular legalized, except otherwise provided for by treaties to which the Socialist Republic of Vietnam is a party. With the lack of a treaty on mutual legal assistance between Vietnam and Germany in this issue, a German certificate of authorization must be legalized so that it can be recognized and used in Vietnam. Legalization is the result of a process usually consisting of the following steps:

Step 1: The certificate of authorization needs to be notarised by the notary public in the German;

Step 2: The notarized certificate of authorization in Step 1 needs to be certified competent diplomatic body in German. In this step, the diplomatic body will certify the signature and seal of the notary public;

Step 3: The document in Step 2 need to be certified by the Embassy/Consulate of Vietnam in the German. In this step, the Embassy/Consulate of Vietnam certifies the signature and seal of the competent diplomatic body in German.

Ms. Thom Nguyen

Associate

Hogan Lovells International LLP

Ho Chi Minh City, Vietnam