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.
:
Application for recognition as incompetent
Jurisdiction
Cases on applications for declaring a citizen incompetent as a court of first instance are considered by the district court (Article 24 of the Code of Civil Procedure of the Russian Federation).
According to Part 4 of Art. 281 of the Code of Civil Procedure of the Russian Federation, an application to recognize a citizen as 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 inpatient conditions, or an inpatient social service organization intended for persons suffering from mental disorders, at the location of these organizations.
Reasons
Before drawing up a document, you need to determine on what grounds you want to deprive a person of his legal capacity. Because only if there are proven facts, the court will satisfy your demands.
The very essence of incapacity is that a person cannot make decisions independently and direct his actions. There are 2 main aspects on which a decision can be made about the need to deprive a person of his legal capacity:
- Legal . In this case, a person cannot make decisions independently without the help of others. His consciousness does not perceive the environment around him objectively. The basis for deprivation of legal capacity can only be a court decision.
- Medical . In this situation, a person has a mental disorder, due to which he cannot fully exercise his rights and powers. The basis for deprivation of legal capacity here is the medical opinion of the doctors. It is in the presence of this document that the court makes a decision on the defendant’s incapacity.
It is also necessary to know that after the requirements in court are satisfied, a person will need to have a guardian appointed. And until the willing person accepts these obligations, the guardianship authorities are obliged to provide guardianship over the incapacitated person. Therefore, it is important to immediately determine which of the relatives is ready to formalize this obligation and state it in additional requirements.
The legislation identifies the following criteria for deprivation of legal capacity:
- Mental disorders . Their appearance does not depend on a person’s age, and they can occur in different people. Such disorders must be recorded by doctors. And only on the basis of a medical report is deprivation of legal capacity allowed by the court.
- Person's age . Due to their young age, minor citizens cannot yet fully understand the consequences of their decisions and actions. Elderly people are often susceptible to age-related changes in their bodies, which cause the impossibility of an objective assessment of the world around them.
- Dependence on alcohol, gambling and drug addiction. It can lead to a person being limited in his legal capacity. Such habits do not allow a person to control his actions, although he consciously understands the possible consequences of his actions. If a person causes material harm to the family, from which other members of his family suffer, restrictions on his legal capacity may be imposed on him.
This is important to know: Statement of claim to invalidate the loan agreement
If your adult relative has one of the listed circumstances, you need to take care of his health condition, as well as take measures to protect him from possible problems. In this case, it is recommended to go to court to deprive the person of legal capacity and obtain custody obligations over this person.
Who has the right to ask the court to declare a person incompetent?
A case for declaring a citizen incompetent due to a mental disorder can be initiated in court on the basis of an application from members of his family, close relatives (parents, children, brothers, sisters) regardless of their joint residence, the guardianship and trusteeship authority, a medical organization providing psychiatric care, or an inpatient social service organization intended for persons suffering from mental disorders. (Part 2 of Article 281 of the Code of Civil Procedure of the Russian Federation).
Sample application for recognition of incapacity - ready-made form and examples
Examples of statements of claim to the court:
Sample 1
Sample 2
These examples will help you correctly file a claim in court to declare a citizen incompetent.
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The procedure for recognizing incapacity
We recommend the publication “The procedure for recognizing a citizen as incompetent,” which covers the following issues:
- Circumstances confirming the inability to understand the meaning of one’s actions
- Appointment of an examination may be refused
- The expert’s conclusion about the presence of mental disorders, the inability to understand the meaning of one’s actions should not contradict other evidence
- Expert opinion is not the main evidence!
- Mandatory presence in court of an allegedly incompetent person
- Guardianship and trusteeship authorities
Other examples of applications for declaring a citizen incompetent
- Sample application for declaring a citizen incompetent (1)
- Sample application for declaring a citizen incompetent (2)
- Sample application for declaring a citizen incompetent (3)
What needs to be included in the application
The header of the application states:
-name of the court, its postal address;
-F.I.O., address, telephone number of the applicant;
- the interested person indicates the guardianship and trusteeship authority, its address and telephone number.
The text of the statement itself should consist of three to four groups of sentences.
The first sentence indicates the last name, first name, patronymic, date of birth, residential address of the person in relation to whom the question of recognition as incapacitated is raised, and the applicant’s relationship to him.
If he is registered at a psychoneurological dispensary, he must indicate the diagnosis and date of registration.
Next, you need to describe the events from which it is clear that he cannot understand the meaning of his actions, manage them and needs guardianship.
For example, he leaves home and does not find his way home. He clearly dresses inappropriately for the season, for example, in winter he goes for a walk in slippers on his bare feet. Or he uses gas incorrectly. He gives away his pension to strangers and is left without a livelihood.
The court will consider the applicant's arguments taking into account the records in the medical records, the conclusion of the forensic psychiatric examination, which is carried out according to the rules established by Order of the Ministry of Health of Russia dated January 12, 2017 N 3 n “On approval of the Procedure for conducting a forensic psychiatric examination” (Registered with the Ministry of Justice of Russia on 02.03 .2017 N 45823).
If the court establishes that the person who filed the application acted in bad faith for the purpose of knowingly unjustified deprivation of a citizen's legal capacity, it will recover from such person all costs associated with the consideration of the case, including for conducting a forensic psychiatric examination (Part 2 of Article 284 of the Civil Procedure Code ).
From October 1, 2019, the applicant himself sends an application with attachments to interested parties
Until October 1, 2021, the plaintiff sent to the court copies of the statement of claim and appendices to it according to the number of defendants and third parties, and the court sent the received documents to all participants in the process named in the claim.
From October 1, 2021, the plaintiff must independently send to other participants in the process a copy of the claim and other documents attached to the claim, and provide confirmation of their sending to the court (clause 6 of Article 132 of the Code of Civil Procedure of the Russian Federation). This rule also applies in special proceedings: the applicant himself is obliged to send interested parties a copy of the application and its attachments.
In __________ district court
Applicant: Victoria Sergeevna Mukhina address: _____, telephone: ______, e-mail address: _____
Interested person-1: Mukhina Valentina Ivanovna address: _____, telephone: ______, e-mail address: _____
Interested person-2: Prosecutor ______ address: _____, telephone: ______, e-mail: _____
Interested person-3: _________ (name of the territorial division of the guardianship and trusteeship authority) address: _____, telephone: ______, e-mail address: _____
State duty: 300 rubles
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.
Legislative regulation
The procedure for depriving a citizen of legal capacity is strictly regulated by the Code of Civil Procedure of Russia. Article 29 of the Civil Code states that a person can be declared incompetent only in court. When considering a case, the judge must consider the presence of mental disorders or other illnesses, as well as the person's ability to take responsibility for his actions.
Important! Art. 29 of the Civil Code of Russia regulates that not all mental disorders are grounds for depriving a person of legal capacity. The patient must cease to control his actions and also understand their consequences. The Law “On Psychiatric Care...” states that only a person’s stay in a psychoneurological institution can cause loss of legal capacity, since not every disease indicates incapacity.
Documentation
We attach the following package of evidentiary documents to the application:
- results of a psychiatric examination , which must be ordered by the court;
- a certificate confirming that the person is registered in a mental health clinic and that he has a specific diagnosis;
- conclusion of a special commission on the presence of one of the disability groups in a citizen;
- copies and originals of all pages of the applicant’s and defendant’s passports;
- documents confirming the size of the family that lives with the defendant;
- documents confirming family ties that entitle the applicant to submit this application.
Expert opinion
Grigoriev Egor Kirillovich
Legal consultant with 7 years of experience. Specializes in criminal law. More than 3 years of experience in protecting legal interests.
To conduct an examination, it is necessary to file a petition, which will be granted in court. At the same time, you can determine the method of carrying it out yourself, depending on the person’s condition. The examination is allowed in three options:
- in the courtroom itself;
- outpatient;
- stationary.
An examination is usually carried out in the courtroom in cases where the other party objects to the deprivation of legal capacity. Then an expert is invited to the room, who determines the person’s condition based on his answers to the court.
Conducting an examination in a hospital or clinic will depend on the person’s health status. If his health deteriorated and he was forced to go to a hospital for treatment, an examination will be carried out there. If a citizen can come to the clinic with an accompanying person, then such a document can be obtained on an outpatient basis.
