When there is a need to limit a person in his rights and obligations on legal grounds, the court, by virtue of its powers, considers an application to recognize the citizen as incompetent. Typically, the initiators of filing documents are the person’s closest circle. However, other entities may also be applicants.
Procedurally, the revocation of legal capacity is carried out according to the procedure described in Chapter 28 of the Code of Civil Procedure of the Russian Federation. After making the appropriate decision, a number of consequences occur. Thus, guardianship is introduced over a person, and the marriage with him is allowed to be dissolved in a simplified manner (Clause 1 of Article 34 of the RF IC).
Before submitting an application, it is necessary to carry out preparatory work. This material will provide practical assistance with this. The article contains an overview of the latest judicial practice on the topic under consideration.
Grounds for declaring a person incompetent
Let’s look at the definition of the very concept of “capacity”. It is contained in Article 21 of the Civil Code of the Russian Federation.
The mentioned term means the ability of a person to acquire and exercise existing civil rights. Create a series of responsibilities through conscious actions, fulfill them, but bear responsibility for the offenses committed.
In legal theory, the last component is also called tortiousness.
It is assumed that until the age of fourteen, a child is completely incompetent, and with rare exceptions, all actions on his behalf are performed by the parents. They are also responsible for possible harm caused by children to others.
In the age range from 14 to 18 years, a citizen has incomplete legal capacity.
He is already able to perform a number of actions listed in Part 2 of Art. 24 Civil Code of the Russian Federation. These include, in particular, the disposal of income received and the implementation of intellectual property rights. Full legal capacity arises for a minor with the acquisition of family status or emancipation.
By the way, already at an early age, legal norms allow a person to open an individual entrepreneur and take the path of a businessman. However, official parental approval has not yet been canceled.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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By default, it is assumed that upon reaching adulthood, a citizen becomes legally capable. According to Art. 29 of the Civil Code of the Russian Federation, it is possible to deprive him of this status due to a mental disorder. Indeed, due to many health problems, a person loses the ability to account for his actions or control them.
Guardian's responsibility
Representatives of incapacitated persons in case of violation of the rights of their wards will bear responsibility established by law. In addition to administrative or property liability, it also provides for criminal liability. In the latter case, we are talking about leaving the person under care without proper control and care. If actions are considered unlawful or expressed in the form of inaction, then in any case they will entail certain penalties. A professional free lawyer will provide online legal advice on family issues around the clock, just leave a request.
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How to recognize a person as incompetent: where to start
Initially, there must be a goal for the implementation of which an application is submitted to the court. The main motive is the establishment of further guardianship in relation to a person deprived of legal capacity.
It is necessary to record deviations noticed in a citizen’s behavior by all available means. The collected documentary and other evidence serves as evidence in court. Witnesses will also provide assistance: those around you or neighbors.
Even before the initiation of legal proceedings, a medical examination of the person must be organized in a specialized clinic. Its results form the basis for motivating future appeals to the court.
Who can apply for deprivation of legal capacity?
The range of possible subjects is specified in Art. 281 Code of Civil Procedure of the Russian Federation. Thus, these include close relatives of the citizen, or other persons included in the family circle. Moreover, the fact of living together is not decisive.
The guardianship service also has the right to send materials to the court. The application is submitted regardless of the relatives’ previous request.
The application is also authorized to be submitted by the clinic where the person is undergoing treatment and the social organization in which the patient is kept permanently as an inpatient. This refers to boarding schools for mental patients and other similar institutions.
Proof
Of course, the court takes the expert’s conclusions as the main argument. However, a person’s illness must be justified in the application and its annexes. There is simply no exhaustive list of materials.
It all depends on the nature of the disease and its duration. In some cases, a complete medical observation history will be useful.
Key evidence:
- known information about the causes of mental disorder, data on the disease suffered before;
- outpatient card, hospital extracts and preserved prescriptions;
- certificate of assignment of a disability group.
Witnesses can also play a significant role in establishing the truth. Their testimony will give an idea of the characteristics of the citizen’s behavior and the actions he commits.
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Filing and hearing a case in court
Both the applicant and his representative by proxy have the right to submit a package of documents to the district court. Everything can be sent by mail.
The court is required by law to consider the application received with all the materials within the framework of special proceedings. The interested parties are the guardianship department and the citizen whose legal capacity is being questioned.
He has the right to be present, provided there is no potential harm to himself or others. Additionally, the prosecutor is involved in the case.
After examining all the evidence and analyzing the oral opinions of those present, the court makes a reasoned decision. It can be reviewed by a higher authority by filing an appeal.
List of documents attached to the statement of claim
The following must be submitted along with the application:
- the applicant’s passport and identification document of the incapacitated person (or the latter’s birth certificate);
- documents confirming family relationships, if any;
- medical certificates (certificate of mental disorder, conclusion of insanity);
- witness statements;
- receipt of payment of state duty.
Expert opinion
Irina Vasilyeva
Civil law expert
The court may take the initiative to conduct an additional psychiatric examination. It is also possible to make a decision in absentia if the evidence provided to substantiate the applicant’s position is sufficient.
Is there a forensic psychiatric examination?
Without it, it is impossible to declare a person insane. Judges entrust the conduct of a set of studies to state specialized medical institutions. After all, their employees risk their own reputation if errors are discovered.
The issue of the upcoming examination is decided before the start of the hearing on the merits. At the preparatory court hearing, the range of issues on which the specialist must express his opinion is determined.
An interested person submits a request to order a psychiatric examination in two equivalent ways. The first involves stating a request to the court directly in the text of the application, the second - as part of the preliminary stage of consideration of the case. In addition, the document can be included as part of an application package.
Recognizing a person as incompetent: questions and answers
The presence in the family of a person with medically proven mental disabilities, along with other life difficulties, results in additional worries and troubles. After all, you need not only to devote time to care, but also, to the extent possible, to protect the interests of your loved one. This is why there is a procedure for recognizing incapacity.
Despite the fact that it is established by the court, people often get lost in procedural matters. They don’t know where to turn, they don’t have a clear idea of what will happen next. It's no surprise that lawyers get asked a lot of questions.
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Here are the answers to the most common ones. It is possible that someone will see in them a way out of their difficult situation.
In what cases is partial incapacity applied?
I often like to drink, which causes scandals in the family. It came to the point of threatening to go to court to restrict legal capacity. Tell me what inconveniences this could lead to in life. Thank you for your qualified answer.
Fedor, Zagorsk
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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The answer to the question posed is contained in Art. 30 Civil Code of the Russian Federation. Limiting a person to incapacity is possible only when it is reliably proven that his addiction significantly harms the family financially. The court's decision will be followed by the appointment of a trustee. He will control all cash receipts to the citizen. The latter only gains freedom within the framework of small household transactions. As a rule, they are aimed at satisfying everyday personal needs.
Why become a guardian for an incapacitated citizen?
Two weeks ago, the court established the incompetence of the older brother. Relatives offer to become his guardian. I wonder if there are any financial or other guarantees from the state. Thank you in advance!
Elena, Kolomna.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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First of all, you need to be aware that the guardian has increased responsibility for caring for the relative. There is also financial support provided at both the federal and local levels. So, in the country as a whole, the monthly amount is 1,200 rubles. Regions may have their own payments. There are also a number of benefits for paying taxes and utility costs.
The procedure for declaring a mentally ill person incompetent
Grandfather has been suffering from memory loss for 3 years now. There were already several cases when he himself could not find his way home and neighbors and acquaintances brought him. Now I want to recognize him as incompetent.
Tell me how to do everything correctly? They say you need to file a claim to be declared incompetent and to establish guardianship?
Timur, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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It is true that, by virtue of the provisions of the Civil Code of the Russian Federation, incapacity due to mental illness is established exclusively by the court. An application is submitted for this purpose. After its acceptance for consideration, an examination will follow, carried out by qualified psychiatrists. The court decision that has entered into force serves as the basis for the provision of a guardian. He will subsequently perform the required legal actions on behalf of the incapacitated person.
Can a court declare an alcoholic or drug addict incompetent?
The son has been abusing alcohol for many years and a significant part of his salary is spent on him. Treatment measures did not lead to results. Since his family is suffering greatly, I want to deprive him of his legal capacity. Tell me, please, is it possible to do this?
Klavdia Stepanovna, Balashikha.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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Addiction to alcohol or drugs in itself is not a reason to declare a loved one incompetent. A prerequisite is the presence of mental disorders. In turn, they must affect human actions. In the described situation, legal capacity can be limited by court. A trustee is appointed to manage the money.
How to declare a person incompetent without his consent
The older brother suffered a stroke and developed memory problems. I discussed the incapacity option with him, but he categorically disagrees. Tell me, is it worth going to court, and how will the case proceed further?
Sergey, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
When the decision is made firmly, it is necessary to file a claim with the court for recognition of incompetence. And the consent of the other party is not mandatory. Next, a determination is made to conduct an examination by specialists in the field of psychiatry. If you evade its passage, everything can be carried out forcibly. The Code of Civil Procedure provides for this possibility.
Payment of guardianship benefits
If a representative is assigned a benefit, it is paid every calendar month. Over time, it constantly changes in amount and will depend on several factors. But it is worth noting that all these funds must be spent in the interests of the ward. There is really no way to be sure where exactly the money received went.
From time to time it is worth contacting the authorized bodies so that the benefits are recalculated, since indexation occurs associated with its increase. Depending on the level of inflation in the country, on average, a five percent increase in benefits goes towards guardianship of the elderly.
There is no mandatory assignment of benefits, but this is generally what happens. But the funds go to the name of the ward, and not to the guardian. The latter is not legally provided for any payments. State financial assistance is provided only in the case when the representative does not officially work anywhere, which often happens, and is of working age, over an incapacitated disabled person (group 1). Children with disabilities receive benefits that are 4-5 times higher than usual. In some regions there are increasing coefficients, which increase the amount of payments from the state.
Consequences of meeting requirements
The operative part of the final version of the decision states that the person is considered incompetent. Some courts additionally indicate address, year of birth. The court sends a copy of the document to the guardianship authority. This organization will then be in charge of appointing a guardian.
When a person is married, divorce is carried out in a simplified manner. To do this, the other spouse submits an application to the registry office on his own behalf. And in a month the certificate will be ready.
If a person is declared incompetent according to all applicable rules, attempts to challenge transactions with his participation are not excluded. In any case, there are such examples in judicial practice.
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How to obtain guardianship
The court decision does not indicate the candidate's initials. The decision on it is made by the guardianship authority, taking into account the personal qualities of the citizen and his attitude towards the ward. A guardian is not appointed if the incapacitated citizen is permanently in a specialized medical or social institution.
The procedure itself is prescribed in Art. 11 of the law on guardianship and trusteeship No. 48-FZ. A person who wishes to become a guardian submits an application to the department at the place of residence of the incapacitated person. It is considered within a month, after which an act is issued legally confirming the establishment of guardianship.
During the period of guardianship, the guardian's performance of his duties is regularly checked. The same applies to the property of the ward.
What benefits does a guardian receive?
Naturally, caring for a patient takes up a significant portion of time. Therefore, the guardian is entitled to financial support. For now, its amount is 1,200 rubles monthly. This amount is added to the pension of the disabled person.
There are discounts on some payments for guardians. Thus, a 50% discount applies to payment of utilities and transport tax. The same applies to the costs of a notary.
Each region of the Russian Federation may establish additional ways to support people who have received guardianship. All important details can be easily obtained from your local social security office.
Privileges are not automatically granted. The guardian must take care of receiving them himself.
What is incapacity
The concept of incapacity is enshrined in Part 1 of Art. 29 Civil Code of the Russian Federation. According to the law, a person who is incapacitated due to a mental disorder does not control his actions and does not understand the consequences of his decisions.
Only a court can declare a person incompetent. In this case, the following may contact this authority:
- Close relatives of a person with a mental disorder (children, parents, brothers and sisters).
- Persons living with this person for a long time.
- Guardianship and trusteeship authority.
- A medical organization that provides mental health care to a person.
In addition, a citizen who abuses alcoholic beverages and narcotic substances, and also poses a danger to others, can receive the status of incompetent.
Arbitrage practice
Considering the category of cases usually does not cause difficulties for judges. The decisions made are based on the expert opinion. The opinion of the guardianship authority and the prosecutor is also heard.
At the same time, there are some procedural features. Thus, the full texts of many decisions are not made publicly available. This is due to various reasons, including ethical considerations.
Below are three relatively recent court decisions. All names are fictitious.
Procedure for appointing an examination
Citizen Demyanova filed an application to declare her father incompetent. The arguments were based on the fact that the man was the liquidator of the accident at the Chernobyl nuclear power plant. As a result, he began to exhibit mental abnormalities that made it difficult to account for his actions.
The issue of ordering an examination was decided at a pre-scheduled court hearing. The interested person himself was not against the examination. The court also formed a range of issues that were put to the specialist’s consideration.
Based on the expert opinion, the Ustinovsky District Court of Izhevsk dated November 19, 2018, in case No. 2-2030/2018, declared Demyanova’s father incompetent. The result of this case.
Consequences of the disease
Often, incapacity is a consequence of more than just mental illness. Often, a person's loss of ability to control their own actions manifests itself after a stroke. As an illustration, we can cite the decision of the Kislovodsk City Court dated January 25, 2019 in case No. 1-1740/2018.
The son applied to the court to declare his mother incompetent. He pointed out that after the stroke the woman stopped recognizing loved ones, eating independently and satisfying natural needs. This was confirmed in the expert opinion.
As a result, the court's decision granted the application. At the same time, it is indicated that it is the basis for establishing guardianship.
Restoration of legal capacity
Its cancellation is not permanent. When obvious improvements in a person’s health are visible, the court has the right to restore legal capacity. A separate application is submitted for this purpose. Here's one example.
Previously, the court declared Nikiforova incompetent. But after a while, changes in her mental state became noticeable, which were expressed in the stabilization of memory and intellectual abilities. However, the examination showed that the citizen’s mental state had improved only to a certain extent.
Therefore, by the decision of the Kalininsky District Court of Tyumen dated February 4, 2019 in case No. 2-239/2019, the requirements were not satisfied in full. Namely, Nikiforova was recognized as having limited legal capacity.
Removal from guardianship
As soon as a person becomes a guardian, one must be prepared for the fact that he will be constantly checked by the guardianship authorities. If some conditions are not met, then you can be removed from guardianship altogether. A representative may independently express a desire to refuse to be appointed as a guardian. Deprivation occurs, among other things, if there are constant complaints not only from the relatives of the person under care, but even from neighbors.
In this case, the guardianship authorities must visit the guardian at his place of residence within three days to inspect the living conditions and maintenance of the ward. This visit is unscheduled. The most important thing is that there is an evidence base. If the statements and complaints are empty, then no action will be taken by the guardianship authorities.
Evidence may include the conclusion of a medical institution regarding the representative’s existing illness, explanations from neighbors about rough treatment of the ward, as well as information received about the constant use of alcohol by the representative himself. Removal from guardianship also occurs in the case when the funds received are spent not for the benefit of the person under guardianship, but for one’s own personal needs. True, this fact is very difficult to verify and prove.
