What is the procedure for declaring a citizen incompetent?

The importance of such a method of protecting civil rights as a declaration of incapacity cannot be underestimated. It would seem, why go to court? We answered this question, as well as general information on the procedure for declaring a person incompetent, below.

Most often, such applications are made by close relatives: parents, children who ask to recognize parents suffering from senile dementia as incompetent, or a spouse.

The most common grounds for going to court are receiving a disability pension for an incapacitated person, protecting the property that such a person has (criminal personalities can also come into the trust of an incapacitated person), and subsequently filing a claim to invalidate a transaction (for example, the donation of an apartment). To independently draw up an application in a special proceeding, draw up an application to the court according to the proposed sample.

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Application for recognition as incompetent

Grounds for recognition as incompetent

A person’s ability to independently exercise their rights and responsibilities can be completely restricted by a court decision. This process is initiated by filing an application for recognition as incompetent. A positive decision will become the basis for appointing a guardian. It is the guardian who will manage the property and income in the interests of the person declared incompetent. It will ensure protection and representation of the interests of the warded citizen in the process of life.

The law names two conditions under which you can go to court and declare a person incompetent. And they must be available at the same time. This:

• the person is mentally ill
• due to such an illness, he is not aware of his actions and is unable to correctly evaluate and manage them.

That is, not any disease, but only a mental illness (the diagnosis must be established), due to which the citizen ceases to bear social responsibilities and is not aware of his condition.

Regulatory regulation

The concept of legal capacity is interpreted by paragraph 1 of Art. 21 Civil Code of the Russian Federation. This is the ability of a citizen to carry out his responsibilities and exercise his rights to the fullest throughout his life.

The opposite concept - incapacity - is interpreted in Part 1 of Art. 29 of the Civil Code and represents a state of a citizen when he is unable to realize the essence of his actions and be responsible for them.

There are the main criteria that determine how to recognize a person as incompetent and arrange guardianship over him:

1. Medical indications according to which the incapacity is considered to be a consequence of a mental disorder;
2. A legal definition that includes a citizen who is unable to adequately assess the situation and make decisions independently.

From a legal point of view, it is possible to declare someone incompetent only through a court, which, in turn, is obliged to appoint a guardian who receives the right to make transactions on his behalf. The procedure is regulated by the Federal Law “On Guardianship and Trusteeship” No. 48 (dated April 24, 2008).

List of normative acts regulating the establishment of incapacity;

• Civil Code of November 30, 1994;
• Code of Civil Procedure of the Russian Federation dated November 14, 2002;
• Order of the Ministry of Health dated January 12, 2017 (On the procedure for ordering a forensic psychiatric examination).

Currently, there are three criteria for depriving a person of legal capacity (in whole or in part):

1. Age. People who are unable to take responsibility for their actions include children and elderly people (over 80 years old) who have lost their criticality and adequate assessment of the situation due to age-related changes. For example, this may be due to a stroke or other serious illness.
2. A mental disorder that prevents an adult citizen from adequately understanding the realities and being responsible for his actions. In this case, it is necessary to obtain a medical report.
3. Partial incapacity. Installed for persons over 18 years of age. This is a condition in which a citizen as a whole adequately assesses the situation, but due to some objective reasons (for example, due to alcohol addiction) is not able to react rationally to individual events.

Who can file an application for incapacity?

Only a court can deprive a person of legal capacity upon receipt of an application. This application can be filed with the court:

• close relative (parents, children, brothers and sisters) – regardless of whether they live with such a person or not;
• family member - only if they live together with a citizen;
• a medical organization where a person receives mental health care;
• a social service institution for the relevant category of persons with mental disorders;
• guardianship and trusteeship authority.

If a citizen in need of guardianship has not visited a psychiatrist, we recommend doing so before going to court. Based on the examination, the court will decide on the possibility of ordering an expert examination in the case.

Usually, before ordering an examination, the court personally becomes familiar with the condition of the person who is being asked to be declared incompetent. Therefore, it is necessary to foresee in advance the possibility of bringing such a citizen to the court hearing. Or apply for a mobile court hearing at the place of residence of the incapacitated person.

Examples that help to take into account some of the nuances when considering a case

Example #1

The person regarding whom the decision is made does not participate in the costs of maintaining the family due to lack of earnings. His moral state is deteriorating; this fact depresses him. A person wants and can work, but employers’ refusals unsettle him. Because of this, he begins to drink regularly, which becomes a habit and even an addiction. His housemates treat him to drinks. In this case, this citizen will not face legal consequences on this issue. The reason is that there is no connection between the deterioration of the financial situation in the family due to excessive alcohol consumption, since the person did not participate in the financial support of the family anyway. There are no grounds for satisfying the claim.

Example No. 2

The man has his own business. The financial turnover of his company is measured in millions per year. He fully supports his family; once a month he and his wife go on vacation to a resort. However, he began to develop a strong attraction to gambling. A person leaves half of his income outside the family. Now the wife cannot afford daily shopping, a spa, or parties with friends in bars and restaurants. However, even in such conditions, the husband regularly supports the family, pays receipts for utility bills and other payments, and the child still goes to an elite school. In general, there is enough money to continue living and existing in normal conditions. The spouse's indignation and her appeal to the court will not be successful; legal consequences of this nature, just like in the first example, will not occur, since there is no difficult financial situation in the family.

Example No. 3

The person is addicted to drinking. He spends all his earnings on alcohol. Essentially, he is dependent. Family members have to bear the burden of maintaining the house. They succeed. My wife went to work part-time and is doing double duty. Their overall financial situation has even improved. What decision will the court make, taking into account the above? In this particular case, there is a good chance that the application will be granted, since the active coercive behavior of family members does not justify the passive antisocial behavior of the spouse.

The procedure for making a decision by the court on this issue and its consequences are also clearly defined by law. The decision itself has sufficient grounds for the appointment of a trustee, who is the legal representative of such a person, and is obliged to act in his interests.

Filing and hearing a case in court

Jurisdiction of cases: district courts. And only at the place of residence of the incapacitated citizen or his place of residence when he is placed in a medical organization or social service institution. The applicant is exempt from all court costs, including state fees.

As part of the consideration of an application to declare a person incompetent, the court will necessarily order a forensic psychiatric examination. Such an examination is a priori carried out at the expense of the budget. But if the court determines that filing an application to recognize a person as incompetent was deliberately aimed at unjustified deprivation of rights, then it will recover from the applicant all costs associated with the consideration of the case.

If it is difficult to submit medical documents along with the application to the court, ask the court to request them from the psychiatrist.

The case is being considered with the participation of the prosecutor, the applicant and the citizen, a representative of the guardianship and trusteeship authority. If a citizen poses a danger to others, the meeting will be held in a medical organization or social service institution.

Who can obtain guardianship

In most cases, a close relative of an incapacitated or limited citizen is appointed as a guardian. It is believed that it is easier for this person to obtain court approval. However, not every relative meets the established requirements:

1. The guardian must be an adult with legal capacity.
2. No criminal record.
3. Have sincere intentions towards the mentee.

The court will also evaluate the applicant's financial capabilities and personal qualities. To do this you need:

1. Have a permanent, official income.
2. Have your own living space. If relatives live with the prospective guardian, it is necessary to provide the consent of these persons that they are not against cohabitation with an elderly person or a disabled person.
3. Provide a reference from your place of work.
4. Provide a certificate from a physician stating that the applicant does not have incurable diseases or acute viral infections.

In addition, the guardian must suffer from alcohol and drug addiction - this fact is confirmed by a certificate from a medical institution.

The status of a guardian gives the citizen certain responsibilities towards the ward:

1. Caring for the elderly or disabled.
2. Solving issues related to medicine (purchase of medicines, placement in a specialized medical institution, etc.).
3. Representing the interests of the ward in all instances.
4. Taking actions aimed at improving the quality of life of the ward.
5. Disposal of his funds.

When making a decision, the court will take into account the person’s readiness to fulfill the established duties.

How to make an application?

An application to deprive an elderly citizen of legal capacity is drawn up according to the rules established in the Civil Procedure Code of the Russian Federation (Special Proceedings). In addition to indicating the details of the court, guardianship, prosecutor's office, it is worth indicating the medical. organization where the person is observed.

In the descriptive part of the application, you can outline the chronology of the development of the pensioner’s illness, indicating the diagnoses (medical documents must be attached to the application).

If there were any incidents where the police, firefighters, the Ministry of Emergency Situations and/or other authorities were called, which were recorded by the relevant protocols, then you better indicate this information (also attach documents to the application)

Note! You can also ask the court to subpoena witnesses who can confirm the inappropriateness of the patient’s behavior. You can read in more detail about how to draw up a statement and also download the template using the link here.

How to regain legal capacity?

In addition to establishing incapacity, there is also a reverse procedure. If the grounds on which a citizen’s ability to dispose of his rights were limited have disappeared, changes in the citizen’s legal status are also recorded with the help of a judicial act.

There are two options here:

• if pathological changes in the psyche of a citizen are only partially compensated, but he has acquired the ability to direct his actions, he can be transferred from the status of a completely incapacitated person to a person with limited legal capacity. The limitation in this case will be that large transactions will require the consent of the trustee (but no longer the guardian!);
• if the changes in the patient’s mental state turn out to be so beneficial that he no longer needs the help of either a guardian or trustee, all grounds for incapacity disappear, and the citizen then has the opportunity to fully dispose of all the rights that are granted to him by law.

Process

The trial may drag on for several months, 3-4, it all depends on the workload of the judges, as well as the efficiency of the experts. In some district courts (for example, Izmailovsky), the delay in your hearing can be up to 6 hours. You may not participate in the trial, this is your right, but if you do not want to personally participate in the case, then you should hire a representative who will monitor the progress of the case. Otherwise, you will not be able to exercise your procedural rights (Article 35 of the Code of Civil Procedure of the Russian Federation).

We provide assistance in declaring elderly people incompetent; you can find out about the cost and procedure for providing services by following the link.

Types of disability

Today there are three types of incapacity :

1. Due to mental illness. It is confirmed by medical documents that the person cannot adequately assess the situation and correctly perceive reality.
2. Due to reaching old age. There are often situations when older people commit actions that pose a threat to their life and health, and also disturb the peace of others. The reason for their inadequate perception of reality is the complete or partial loss of mental and physical health.
3. Partially incapacitated person. In this case, the citizen is able to adequately assess the events taking place, but due to objective reasons cannot give the correct reaction to them.

It should be understood that not every mental disorder is grounds for declaring a citizen incompetent. In accordance with Art. 29 of the Civil Code of the Russian Federation, the main criterion is the inability to control one’s actions and understand their further consequences.

A person who has been declared legally incompetent by a court decision is appointed a guardian.

Features of transactions on behalf of an incapacitated person

If the court decision has entered into force, the consequences of declaring a citizen incompetent will be as follows:

• The disposal of property and the execution of all transactions on behalf of the citizen falls entirely on the guardian.
• The incapacitated citizen himself does not make any transactions - but at the same time does not bear any responsibility for his actions;
• The guardian has the obligation to listen to the opinion of the citizen himself. But if pathological changes in the psyche of the incapacitated person have gone so far that he can no longer speak out, the guardian should be informed by the citizen’s relatives, predecessors of the guardian and other persons who have ever provided services to the incompetent person. The information should contain information about tastes, preferences and other features relating to the citizen’s personality.

For comparison: if a citizen was not declared incompetent, but only a partial restriction occurred, then a guardian is not assigned to him. A trustee is appointed. He does not make a transaction on behalf of a person, but only gives his consent.

The peculiarities of the position of the trustee are that a citizen has the right to make small purchases or orders independently. The caregiver is not required to give consent, for example, to purchase groceries in a store or a ticket on a transport; the ward can do this himself.

On what grounds can a citizen become incapacitated?

The concept of “capacity” used in Russian law means the ability not only to have rights (all people have them - from birth to death), but also the ability to independently exercise them, assign responsibilities, fulfill them and bear responsibility for non-fulfillment. According to the law, this opportunity arises in full for every citizen after he turns 18 and lasts as long as he is still alive. However, the legal order provides for the possibility of both early acquisition of all opportunities (emancipation of minors) and their limitation in a number of strictly established cases.

A citizen may become incapacitated if the following grounds exist:

• Due to age. From birth to six years of age, a citizen cannot make any transactions - parents or other legal representatives act on his behalf in all cases. However, the peculiarities of this age should not be considered, since a judicial procedure is not required here;
• As a result of mental illness. If a citizen cannot account for what he is doing, and at the same time cannot control his actions, he may become incapacitated. However, we must remember: a psychiatric illness in itself does not provide grounds for depriving a citizen of the opportunity to control his actions. Even if he requires hospital conditions, at least the opinion of independent specialists is required.

In addition to complete incapacity, Russian civil legislation also identifies cases when restrictions are applied to his ability to dispose of his rights. Restriction of legal capacity is permitted when the following conditions exist:

• A person suffers from alcoholism or drug addiction, abuses gambling - and thereby ruins his family, depriving it of its livelihood;
• A person suffers from a mental illness, but still understands what he is doing and can control his actions.

We will discuss the features of the status of a completely incompetent and partially incompetent citizen a little later.

Recognition procedure

It is permissible to deprive or limit a citizen of his legal capacity only through a judicial procedure. If an elderly person is under home care, you should contact the district court at the address where he lives. If you are being treated in a hospital or in a special institution, then you need to go to court at the address where the institution is located.

Who can apply

When it is necessary to recognize incapacity, you should start by writing a petition that includes such a requirement. The Civil Procedure Code determines the list of persons who have the right.

It includes a number of people, including loved ones:

• spouse;
• citizens living with an elderly person in the same living space;
• children over 18 years of age;
• brothers and sisters;
• parents;
• guardianship authority;
• a special psychiatric institution;
• an institution that houses disabled people.

In the case of mental disabilities, the carrier himself is not given the right to submit an application, that is, the citizen cannot recognize himself as incompetent.

Where to contact

When applying to the court, you must pay a state fee. The applicant is required to pay only this amount. No further expenses are required. True, there is an exception. If the court determines that the applicant is acting from unseemly motives, trying, for example, to falsely declare an older relative incompetent, then all costs that arose during the hearing of the case will be recovered from him.

How to write an application

The document must reflect the following points:

1. Name of the court.
2. Full name and place of residence of the applicant (or address and name of the institution from which the application is received).
3. Information about the elderly person about whom the appeal is being made (full name, time and place of birth and residence, doctor’s report, certificate of disability, and others).
4. Confirmation of family ties (or a document that gives authority to a specific institution to go to court).
5. A list of factual circumstances indicating dementia or the inability of a mentally disabled citizen to direct his own actions.
6. Appeal to the court with a request to legalize incapacity.
7. Applications (application, medical certificates, disability certificate, etc.).

Documents allowing to recognize an elderly person as incompetent

What evidence may be required at a court hearing? The procedure for establishing incapacity involves collecting a set of papers. Without them, it is impossible to both formalize insolvency and satisfy claims.

Required documentation includes:

• expert opinion on undergoing a psychiatric examination;
• an extract from the hospital where the citizen is registered;
• disability document.

In addition, the applicant must submit:

• ID cards (from him and the senior citizen);
• certificate of family size;
• document confirming your relationship status.

A person can be declared incompetent only on the basis of the conclusions of an expert in the field of psychiatry. Referral for this examination occurs according to the act.

The procedure may be forced, but only in those situations where the court determines that the citizen is consciously avoiding going through it.

Carrying out an examination

They are sent for examination to the following authorities:

• hospital;
• outpatient;
• directly during the proceedings.

The expert is presented with a number of questions, which he must answer. And based on the conclusion, it is decided whether to deprive the person of legal capacity or not.

Making a decision

Legally, the recognition of an elderly person as insolvent begins to take effect 30 days from the date of issuance of the act in court. However, during this period the citizen has the right to file an appeal.

When the decision acquires legal force, it is subject to transfer to the guardianship authority. An incompetent citizen is placed under guardianship. When it is not possible to find a guardian within the prescribed period, his duties are performed by the social protection authority.

How long does the procedure for declaring incapacity last?

As practice says, the period ranges from three to six months.

Guardianship of an incapacitated citizen

Guardianship of an incapacitated or partially capable citizen is appointed on the basis of a court decision. In accordance with Art. 35 of the Civil Code of the Russian Federation, a person who has reached the age of majority and has no criminal record for intentionally causing harm to the health and life of people can be designated as a guardian or trustee. When appointing a guardian, the court takes into account the opinion of the ward himself and family relations with the candidate.

Persons deprived of parental rights cannot exercise guardianship over incompetent citizens.

Civil legislation directly indicates that a person who has assumed the responsibility for guardianship of an incapacitated citizen must take care of his ward and provide him with the necessary care and treatment. In addition, the guardian has the right to make any transactions, including real estate, on behalf of and in the interests of the incapacitated citizen. Guardianship over citizens recognized as partially capable or incompetent is not assigned if they are placed in medical institutions for treatment or are under supervision in specialized social organizations.