Recognizing a person as incompetent and establishing guardianship

Family lawyer
My name is Alexey Nikolaevich Skryabin, I am a practicing lawyer. I have been practicing law throughout Ukraine since 2007. I have been providing legal services to individuals for a long time. In this article I will tell you about declaring a person incompetent and establishing guardianship

Recognizing a person as incompetent and establishing guardianship

According to part 1, 2 art. 39 of the Civil Code of Ukraine, an individual may be declared incompetent by a court if, due to a chronic, persistent mental disorder, he is unable to understand the meaning of his actions and (or) control them. The procedure for declaring an individual incompetent is established by the Civil Procedure Code of Ukraine. According to Part 1 of Art. 40 of the Civil Code of Ukraine, an individual is recognized as incompetent from the moment a court decision on this enters into legal force. 

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According to Art. 293 of the Code of Civil Procedure of Ukraine, the court considers in a separate proceeding, in particular, cases of limiting the civil capacity of an individual, declaring an individual incompetent and restoring the civil capacity of an individual.

According to Art. 295 of the Code of Civil Procedure of Ukraine, an application to limit the civil capacity of an individual, including a minor, or to recognize an individual as incompetent is filed with the court at the place of residence of this person, and if he is being treated in an institution for providing psychiatric care, at the location of this institution.

According to Part 1 of Art. 298 of the Code of Civil Procedure of Ukraine, the court, if there is sufficient data on the mental health disorder of an individual, appoints a forensic psychiatric examination to establish his mental state.

Please note that according to Part 2 of Art. 299 of the Code of Civil Procedure of Ukraine, legal costs associated with the proceedings on declaring an individual incompetent or limiting the civil capacity of an individual are charged to the state.

According to Part 4 of Art. 63 of the Civil Code of Ukraine, a guardian or trustee is appointed primarily from persons who have family or related relationships with the ward, taking into account the personal relationships between them, the person’s ability to perform the duties of a guardian or trustee. According to Part 2 of Art. 300 of the Code of Civil Procedure of Ukraine, the court decides the issue of appointing a trustee or guardian over an incompetent person only upon the proposal of the guardianship and trusteeship authority.

Family lawyer
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Candidate of Legal Sciences
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