Capacity is one of the most complex legal topics a mental health professional may encounter in his or her practice. The importance of knowledge on this topic increases when we consider that psychiatry is closely related to this legal concept.
We will proceed from the definition contained in the Civil Code of the Russian Federation. Civil capacity or simply capacity in applied terms refers to the ability of a citizen to acquire and exercise civil rights through his actions, to create civil responsibilities for himself and to fulfill them (Clause 1 of Article 21 of the Civil Code of the Russian Federation). In practice, this ponderous legal definition usually refers to the ability to make transactions, enter into contractual relationships (for example, go to work) and be responsible for crimes committed.
A person becomes fully capable at the age of 18: from that moment on, legally, he is his own master and is fully responsible for his actions. This is noted in the Constitution of our country (Article 60 of the CRF). Also, a person who marries in accordance with the law before the age of 18 becomes legally capable. After the divorce, the status of a legally capable person remains with him, unless the court makes a different decision (Clause 2 of Article 21 of the Civil Code of the Russian Federation). A teenager from the age of 16 can become fully capable during the emancipation procedure, provided he works under an employment contract (Article 27 of the Civil Code of the Russian Federation).
The law gives teenagers aged 14 to 18 years the opportunity to carry out small household transactions and manage their hard-earned money: a scholarship, pension or other earnings. Also, from the age of 14, a teenager is a full-fledged owner of copyright (Article 26 of the Civil Code of the Russian Federation). Thus, from the point of view of the law, legal capacity is acquired by a person gradually and is tied to age, without assessing individual characteristics. At the age of 18, all Russian citizens become legally capable. For this reason, none of us and our patients need to prove our legal capacity if we have not previously been deprived of it or limited in it. We are all capable unless proven otherwise.
If we are talking about loss of legal capacity, then the loss is not always complete. The law provides two options (Figure 1). A person may become partially capable (Article 30 of the Civil Code of the Russian Federation), and he may also be declared incompetent (Article 29 of the Civil Code of the Russian Federation). Incapacity refers to the loss of a person's ability to understand the meaning of his or her actions or to direct them due to a mental disorder . With limitation of legal capacity, the situation is more complicated, and we will analyze it in a separate paragraph.
It is important to note that the loss or limitation of legal capacity is not meant to be a final and irrevocable decision in a person’s life. The law assumes that a person’s condition can change, and he can go from being incapacitated to becoming partially capable or fully regaining his legal capacity. A person with limited legal capacity can also become fully capable or, unfortunately, lose his legal capacity completely. These three states describe how the ability to control and be responsible for our actions can change for each of us depending on our state.
Why can one be deprived of legal capacity?
The only reason for deprivation of legal capacity (recognition as incompetent) is a mental disorder that has led to the fact that a person cannot understand the meaning of his actions or manage them. As a rule, this must be a severe mental disorder (unfavorable forms of schizophrenia, dementia, mental retardation), leading to persistent health problems and the inability to independently solve social and everyday issues (go to the store, cook, pay bills).
We must understand that not every mental disorder leads to a person losing the ability to control their actions. Sometimes mentally healthy people do very strange things, which they are then very surprised by and regret. Could/could I have done such a thing in my right mind? - they ask themselves and those around them. Yes, they could, they could, and they did. There is a suspicion that the most terrible things are done by healthy people, and this makes these things even more terrible.
Another point is related to the assignment of a disability group. If a person receives a disability group, even for mental illness, this does not mean that he is incompetent. A person’s incapacity must be proven during the trial, but a certificate of disability does not replace a court decision.
Procedure for considering the case on the merits
The court hearing is held with the personal participation of the citizen whose incapacity is being disputed. Also, a prosecutor, guardianship officer, plaintiff or proxy must be present in the courtroom.
Initially, the judge must fully familiarize himself with the documentation and listen to the views of the parties. To do this, an interrogation of the patient himself is carried out, during which his ability to think sensibly and adequately evaluate his actions is determined. If for some reason a person cannot be personally present in the courtroom, the decision may be made in absentia. In some cases, it is possible for a judicial commission to visit a person’s place of residence.
After interviewing witnesses, if any, the judge must make a final decision and announce it to everyone present.
Who has the right to deprive of legal capacity?
Depriving or restricting a person of legal capacity is a complex legal procedure carried out by a court. Neither a psychiatrist, nor the head doctor of a dispensary, nor a commission of doctors can deprive a person of legal capacity.
Psychiatrists are involved in deciding the issue of legal capacity, but they do not make the decision. During a civil trial, the judge orders a forensic psychiatric examination, which is carried out by psychiatrists. They give their opinion on the patient’s condition, and the judge already draws conclusions and makes a decision. In this case, doctors act as invited experts, but the decision is made by the court. Like any court decision, a decision on deprivation of legal capacity can be appealed in accordance with the procedure established by law.
What is the process for incapacitation?
The process of deprivation of legal capacity is described in the Civil Procedure Code of the Russian Federation (Chapter 31 of the Code of Civil Procedure of the Russian Federation). It begins with filing an application with the court. An application to the court can be filed by family members of a person suffering from a mental disorder and his close relatives. By law, such relatives are parents, children, brothers or sisters. They can do this regardless of living with him. Even if the patient lives in the Urals, and relatives in Central Russia, kinship turns out to be more important than territorial proximity. Among the organizations that can apply to the court for deprivation of legal capacity are guardianship and trusteeship authorities (social protection departments in the local administration), medical organizations providing psychiatric care (hospital, dispensary) and inpatient social service organizations (boarding schools) (h 2 Article 281 Code of Civil Procedure). All other persons and organizations do not have the right to apply to deprive a person of legal capacity.
An application for declaring a citizen incompetent is submitted to the court at the place of residence of this citizen, and if the citizen is placed in a medical organization providing psychiatric care in an inpatient setting, or an inpatient social service organization intended for persons suffering from mental disorders, at the location of these organizations (h .4 Article 281 of the Civil Code of the Russian Federation).
The application submitted to the court must contain “circumstances indicating that the citizen has a mental disorder, as a result of which he cannot understand the meaning of his actions or control them” (Part 2 of Article 282 of the Code of Civil Procedure of the Russian Federation). Typically, relatives indicate that the person is receiving treatment from a psychiatrist, describe his behavior, and his inability to cope with everyday problems on his own. Also, upon acceptance of the application, documents confirming the circumstances stated in the application will be required. This could be a certificate of disability, statements from neighbors. If the application is submitted by relatives, then they need to provide documents confirming the relationship (marriage certificate, birth certificate).
Documents from medical organizations are particularly difficult, in particular if the patient receives treatment on an outpatient basis, in a dispensary or dispensary. Relatives can visit the attending physician for a certificate of diagnosis for the court. We would like to remind you that such information is a medical secret (Article 13 of Federal Law No. 323 “On the fundamentals of protecting the health of citizens in the Russian Federation”). The doctor does not have the right to issue such certificates without a written application from the patient himself or his legal representative (Part 33, Article 13 No. 323 “On the fundamentals of protecting the health of citizens in the Russian Federation”). If a person is not yet deprived of legal capacity, only he can request such a certificate. Relatives must get a refusal from you, otherwise you will break the law, which threatens you with big problems, including losing the right to practice medicine. If relatives shout, stomp their feet and press on you, you explain to them that this is a medical confidentiality, and this information may be requested by the court during further proceedings. People come to us to solve their problems, not always understanding what we can give and what we cannot. If they don't understand, you need to explain it to them. Doctors should not solve other people's problems at the expense of their own safety.
If the judge, having examined the application, considers that the information presented contains sufficient data on a mental disorder, then he appoints a forensic psychiatric examination (FPE). If a person evades passing it, then it can be carried out forcibly (Article 283 of the Code of Civil Procedure of the Russian Federation). In this case, court hearings must take place in the presence of a person who is deprived of legal capacity, even if he is in a hospital or boarding school (Part 1 of Article 284 of the Code of Civil Procedure of the Russian Federation). The process of considering an application to deprive a person of legal capacity does not require payment from the applicant. If the applicant’s goal is to unjustifiably deprive a person of legal capacity, then all costs of considering the application fall on him (Part 2 of Article 284 of the Code of Civil Procedure). If the EIT specialists have come to the conclusion that a person suffers from a mental disorder, which deprives him of the opportunity through his actions to acquire and exercise civil rights, create civil responsibilities for himself and fulfill them, if the court, based on these conclusions, has decided to deprive him of legal capacity, then this decision may be challenged by the person himself or his appointed representative (Part 3 of Article 284 of the Code of Civil Procedure). If this does not happen, then the court decision comes into force.
Legislative regulation
Recognizing a citizen as incompetent, as well as restoring this status, is a very important event, since the presence of this status can directly affect a person’s personal property. If it is necessary to restore legal capacity, you should carefully study all the related legislation of our country, and it is better to contact a specialist competent in this matter for help.
Guardian. Rights and responsibilities of a guardian.
Every incapacitated patient must be assigned a guardian. The appointment of a guardian is carried out by the guardianship and trusteeship authorities (Part 2 of Article 285 of the Code of Civil Procedure of the Russian Federation). As a rule, guardianship and trusteeship bodies are part of local self-government bodies (city and district administrations) (Part 1, Article 6 of Federal Law No. 48 “On Guardianship and Trusteeship”). The law also assumes that other organizations can search for persons who need guardianship, select and train future guardians if they have this right (Part 4, Article 6 of Federal Law No. 48).
You can become a guardian only with your own consent by submitting an appropriate application to the guardianship and trusteeship authorities. The guardian must be an adult and fully capable (clause 2 of article 35 of the Civil Code of the Russian Federation). It would be strange if an incompetent person was cared for by an incompetent person. In addition to general words about “moral and other personal qualities,” when appointing a guardian, his ability to care for the ward and the absence of convictions for crimes against the life or health of citizens are taken into account. The future guardian should also not be deprived of parental rights (clause 2 of article 35 of the Civil Code of the Russian Federation). The desire of the incapacitated person himself about who he wants to be his guardian should also be taken into account (Clause 3 of Article 35 of the Civil Code of the Russian Federation).
Guardians by default are the legal representatives of incapacitated citizens. They can act in defense of the rights and legitimate interests of their ward without any additional permission, only on the basis of a resolution establishing guardianship (Part 2 of Article 15 of Federal Law No. 48). When receiving the status of a guardian, a person is assigned a number of responsibilities prescribed in paragraph 3 of Article 36 of the Civil Code of the Russian Federation:
“3. Guardians and trustees are obliged to take care of the maintenance of their wards, to provide them with care and treatment, to protect their rights and interests...
Guardians and trustees take care of the development (restoration) of the ability of a citizen whose legal capacity is limited due to a mental disorder, or a citizen declared incompetent, to understand the meaning of his actions or to manage them
Guardians and trustees perform their functions taking into account the opinion of the ward, and if it is impossible to establish it, taking into account information about the preferences of the ward received from his parents, previous guardians, and other persons who provided him with services and conscientiously performed their duties.”
In practice, there are cases when the patient’s guardian is one person, and other people are involved in care, not within the framework of a contractual relationship. Let’s say that after a stroke, an elderly woman was deprived of legal capacity due to developing dementia, and her son was appointed guardian. We know that her grandchildren and daughter-in-law are caring for this woman. Is this a failure to fulfill guardianship duties? Legally, it is unlikely, because guardians “have a duty of care... to provide for their care and treatment.” However, with regard to medical decisions (hospitalization, changes in therapy, therapeutic and diagnostic procedures), we can say that the presence of a guardian is mandatory in cases where his consent is required. Discussion of the nuances of treatment should take place in the presence of a guardian, and not other relatives, if they are not indicated in the consent to treatment.
In addition to all this, the guardian must report to the guardianship and trusteeship authorities information about the change of place of residence of the ward no later than the next day after that (Article 15 of Federal Law 48). A guardian may perform his duties not free of charge if he enters into an agreement with the guardianship and trusteeship authorities. Also, instead of payment, the guardian may receive the right, free of charge, in his own interests, to use the property of the ward for a certain period of time (Article 16 of Federal Law No. 48).
Grounds for filing an application for recognition of legal capacity
Current legislation, in particular Art. 29 of the Civil Code of Russia, regulates that before restoring a citizen’s legal capacity, it is necessary to conduct an examination. If it proves that the grounds for which the person was limited have disappeared, the court will be able to reconsider the case, make a new decision and return the citizen to his rights in full.
Important! Since 2015, the Russian legislative framework has provided for an intermediate degree of legal capacity - limited. It is prescribed when the condition of mentally ill persons improves.
Transactions in case of incapacity
Usually conversations about transactions and disposal of property concern various real estate, i.e. apartments, rooms, houses or cottages. In general, the rules are the same for all property. There is a special relationship between the guardian and the ward regarding the property of both. The guardian does not have the right of ownership to the property of an incompetent person, and he does not have similar rights to the property of the guardian (Part 1, Article 17 of Federal Law No. 48). The property owned by an incapacitated person is accepted by the guardian according to an inventory drawn up by employees of the guardianship and trusteeship authorities together with other specialists (Part 2 of Article 18 of Federal Law No. 48).
According to the law, guardians are representatives of the wards and make all necessary transactions on their behalf and in their interests (Clause 2 of Article 32 of the Civil Code of the Russian Federation). All transactions with property owned by an incapacitated patient occur with the permission of the guardianship and trusteeship authorities. These permissions must be given in writing (clause 2 of article 19 of Federal Law No. 48). Funds (pension, alimony, other payments) to which an incapacitated person is entitled are credited to a special account, and their expenditures are submitted to the guardianship and trusteeship authorities in the form of reports (Clause 1, Article 37 of the Civil Code of the Russian Federation). At the same time, guardians, their spouses and close relatives cannot enter into transactions with the person under their guardianship, except for donating him or transferring property to him for free use (Clause 3 of Article 37 of the Civil Code of the Russian Federation). In simple terms, a guardian cannot buy out an apartment from an incapacitated person whom he is guarding. The guardian must take care of the property of the incapacitated person and prevent its damage (Part 5, Article 18 of Federal Law No. 48). Transactions with the real estate of an incompetent person must occur after the written prior consent of the guardianship and trusteeship authorities (clause 2 of article 37 of the Civil Code of the Russian Federation).
All transactions of a person who has been declared incompetent become invalid if they were concluded after the moment of decision on this incapacity (clause 1 of Article 171 of the Civil Code of the Russian Federation). However, in practice, we encounter a situation where a person suffers from a mental disorder and has been observed by psychiatrists for a long time, but he was deprived of his legal capacity, say, a few years after that. During this period, he made a deal that his relatives want to challenge. In this case, the relatives need to go to court to terminate this transaction, and the decision on the patient’s capacity to bargain at the time of the transaction will be made during a forensic psychiatric examination. If an elderly woman was diagnosed with dementia on a certain day, and this fact was recorded by a psychiatrist in the medical records, then all transactions concluded by her from that day onwards may be considered invalid .
Rights of incapacitated patients
By law, the patient's opinion must be taken into account by the guardian in resolving social, medical and other legal issues. Losing legal capacity, a person does not cease to be human.
The practice of neglecting the rights of incompetent patients is very common. It is difficult to describe this issue as exclusively legal. In many ways, there is a moral aspect here. A psychiatrist should remember that despite the severity of a person’s condition and his legal status, a humane attitude towards him must be maintained. The neglectful and cruel attitude of a guardian towards an incompetent person must be suppressed by a doctor, and it should be reported to the guardianship and trusteeship authorities.
