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Is it possible to restore legal capacity without the participation of the guardian?

30/09/2013

Citizen P. appealed to the free legal office of the Office for the rights of persons with disabilities. She was incapacitated and lost all her civil rights and now she can’t apply to any bodies and institutions by herself – only with the help of her guardian. Her daughter, who is her guardian doesn’t want to change the situation and refuses to take part in the procedure of restoration of legal capacity. Citizen P. wants to know if she has the possibility to restore legal capacity by herself.

Different mental disorders can become a serious limitation of civil rights. According to art 29 of the Civil Code of the Republic of Belarus, a citizen who because of mental disorder (mental illness or dementia) can’t understand the meaning of his activities, can be found incapacitated by the court. The loss of legal capacity is a serious limitation, depriving a person of the right to decide practically everything in his life.

According to the art. 373 of Civil procedural code of the Republic of Belarus, case of finding a person incapacitated because of mental illness or dementia can be opened after the claim by the members of his family, if there are no family – by close relatives, prosecutor, body of guardianship, psychiatric institution of healthcare. The claim about finding a person incapacitated is filed to court at the place of the citizen’s residence, if a person is put to the psychiatric healthcare institution – at the location of the institution.

A citizen can be found incapacitated only by the court, and not any mental disorder can become the reason for finding a citizen incapacitated, but only the one which deprives him of the possibility to understand the meaning of his actions.

A person is found incapacitated by court considering the conclusion of forensic-psychiatric expertise. Lawyers of the Office for the rights of persons with disabilities state that the expertise is very often based on the patient’s medical history and some other documents. The presence of the person in court is considered to be not obligatory, although at the moment when the trial is taking place he is still legally capable and has the right to take part in the trial.

For example, in accordance with the art. 4 of the Law of the Republic of Belarus “On appeals by citizens and legal entities”, written and email appeals to the state institutions and organizations in the name of legally incapable citizens are filed by the legal guardians, oral appeals are also made by legal guardians at personal meetings. Legal guardians make all the deals in the name of legally incapable persons.

That is why only relatives, guardian or any other legal representatives can file a claim to court with the request to restore legal capacity. The initiation of the process of restoration of legal capacity depends on the decisions of other persons, the person who is legally incapable does not have such a right. In practice, a legal representative of incapable person has to file a claim to court about the restoration of legal capacity if there are grounds for it (for example, remission). But, as practice shows, there are concrete cases when it doesn’t happen: for example, citizen P. lives separately from her daughter-guardian and can live on her own, but she can’t restore her legal capacity because her daughter is not interested in it.

Specialists of the Office for the rights of persons with disabilities appealed to different state institutions (policlinic, where citizen P. is observed, city psychoneurologic dispensary, prosecutor’s office at the place of residence and others) with a request to consider her case. But the answer was the following: “there are no grounds for filing a claim to court for finding citizen P. legally capable”. State institutions also write that there is no evidence of improper performance of duty by the guardian.

The Lawyer of the Office for the rights of persons with disabilities pays attention to stereotypes which exist in the society:

  • Many people consider that an incapacitated person is a dangerous person. It is not always like this: for example a person suffering dementia is not dangerous at all, he can work and do some simple job.
  • Specialist pays attention to the importance of making changes in the legislation, which will provide the possibility to personally initiate the restoration in legal capacity by a person who was found legally incapable. Such practice has already been introduced in Russia: in April 2011 such changes were introduced to the Civil procedural code of Russian Federation. In accordance with which the citizen can apply to court on his own with the appeal to restore legal capacity independently from the decision of his guardian. In such process the incapable citizen acts in his own name, he can hire a lawyer, appeal the court’s decision. Granting a citizen the right to file a claim to court in order to restore legal capacity is not only a procedural formality, but an acknowledgement of inalienable right of every person to be an independent person and to demand respect to his dignity.