How is a citizen declared incompetent?

The only legal way to resolve the problems associated with the helplessness of a patient with dementia is to declare him incompetent. We will tell you what difficulties there are along this path, what rights and responsibilities a guardian of an elderly person has, and what is the legal procedure for establishing incapacity.

Sooner or later, most families of people with dementia will have to deal with legal issues, such as:

you need to make a transaction with property registered in the ownership of a patient with dementia, and the notary does not certify the transaction due to reasonable doubts about the patient’s legal capacity;
the patient no longer understands where and how to sign when receiving a pension or re-registration of documents;
the patient is the owner of the apartment, and there is a risk that he will become a victim of fraudsters.

Of course, all property matters are best resolved at the stage of mild dementia, when the patient can express his will and understands the consequences of his actions. But to do this, you need to diagnose dementia early and discuss plans for future life with the patient. Unfortunately, most often, even after an established diagnosis, the patient’s relatives are in no hurry to resolve legal problems, and later this becomes a much more difficult task.

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.

How to apply for disability for a patient with dementia

Many people confuse the concepts of “incapacity” and “disability.”

Disability is a social status. It is assigned based on the results of a medical and social examination, and it means that a person is disabled, therefore, receives additional rights to social assistance.

When diagnosed with dementia, regardless of the cause and degree, the ability to work is always reduced, and the patient receives the right to disability.

Most often, doctors do not offer to register a disability, but do so at your request. Many families decide not to engage in this procedure because benefits and benefits, in their opinion, do not justify the time and effort spent on undergoing the examination. But if social assistance is significant for your family, ask your local neurologist at the clinic or psychiatrist at the PND to refer the patient for a medical and social examination (MSE).

When passing the examination, remember: if the patient needs any specific care products or equipment (for example, diapers, waterproof diapers, walkers, etc.), they need to be included in the individual rehabilitation program (IRP) card, and then you will be able to receive these items for free.

Types of disability

Today there are three types of incapacity :

Due to mental illness. It is confirmed by medical documents that the person cannot adequately assess the situation and correctly perceive reality.
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.
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.

Guardian of a patient with dementia: rights and responsibilities

How does the situation change when a caregiver becomes a guardian?
Changes for the better:

there are no problems with hospitalization in care units or placement in a boarding school;
all medical documents, including extracts from hospitals and outpatient dispensary cards, are given to you (if problems arise, write an application addressed to the chief physician and request a refusal in writing);
the patient’s pension is issued (to do this, you need to obtain a special document from the guardianship authorities to access the ward’s account).

Difficulties:

an annual report to the district guardianship authorities (to report that the ward’s pension has been spent on him, you have to keep receipts for large purchases, for example, clothes, medicines;
Having warned you, representatives of the guardianship authorities will come to your home to assess the patient’s living conditions, but if the house is clean, the patient is well-groomed, he has his own place to sleep, and there is food in the refrigerator, this visit does not cause problems);
transactions that are related to the sale of the ward’s property are possible only with the permission of the guardianship authorities (for example, in order to sell the ward’s apartment, it is necessary to register in his new apartment an area no less than that which he owned in the old one, and prove that the new conditions are no worse than the old ones; usually for a family who sells a smaller apartment to buy a larger one, this is not possible).

Becoming a patient’s guardian takes time—about six months. This cannot be done quickly if necessary.

Consider whether there is a need to declare the patient incompetent as soon as he is diagnosed with dementia. In unclear situations, consult a lawyer.

Pensioners and people with disabilities can receive free legal advice and even support from lawyers who receive government funding. Their coordinates can be found in the social protection department or on the website of the regional department. Human rights non-profit organizations also provide free legal advice.

How is a citizen declared incompetent?

Only a court can recognize incapacity.

Recognition algorithm:

The interested party files a statement of claim with the court at the defendant’s place of residence. If the defendant is undergoing treatment in a medical institution - at the location of the hospital. The statement of claim must provide full information about the defendant’s mental state and provide evidence of his inappropriate behavior. The claim is accompanied by witness statements, medical reports, etc. A sample application can be downloaded on the Internet. If the situation is not standard, it is advisable to involve an experienced lawyer in the case.
The court is considering the plaintiff's application. Then there are two options for the development of events: the judge accepts the case or rejects the applicant’s appeal.
Making a decision on the case.

Recognition of incapacity in court means a lack of legal independence. That is, the defendant will not be able to make important legal decisions on his own.

The following must be present in the courtroom:

Plaintiff.
Defendant.
Representative of the guardianship and trusteeship authority.
Prosecutor.

If, for objective medical reasons, the defendant cannot be present in the courtroom, the hearing will take place on the territory of a medical (psychiatric) or other specialized institution.

The court decision comes into force one month after its official announcement. During this time, a person who has been declared incompetent has the right to appeal and restore his civil rights and obligations.

After the court decision has entered into legal force, a guardian is appointed to the incapacitated citizen - a person who protects the interests of his ward and carries out important legal transactions on his behalf.

The appointment of a guardian is carried out by the guardianship and trusteeship authority. Within a month from the date the court decision enters into legal force, a close relative of the incapacitated person must declare his intention to become a guardian. If this does not happen, the right to take care of a mentally unstable citizen passes to the guardianship and trusteeship body.

The concepts of full, partial legal capacity and incapacity are on the same level and are aimed at assigning certain rights and responsibilities to a person, as a citizen.

Due to illness, reaching a particular age, or mental disorder, a person may lose the ability to understand the meaning of his actions. At such a moment in his life or throughout it, a person ceases to control his actions and, accordingly, may be declared incompetent or partially capable.

Types of disability

Today, there are several types of incapacity:

age-related incapacity;

Age-related incapacity occurs before the age of majority, namely the age of eighteen and in very old age, when, as a result of age-related changes, a person ceases to control his actions and loses his legal capacity. If in the first case, incapacity arises from the condition of being in a certain age category, then in the second case, the procedure for recognizing incapacity will be the same as in the case of a mental disorder or disease.

incapacity due to mental disorder;

As the name suggests, it arises as a result of a citizen’s loss of the ability to adequately perceive reality and be responsible for their actions and deeds.

Limitation of legal capacity;

Restrictions on legal capacity limit a number of rights and obligations of a citizen, primarily to enter into transactions for the disposal of property. The limitation of a citizen’s legal capacity is expressed in the fact that, in accordance with a court decision, guardianship is established over him and he can make transactions to dispose of property, as well as receive wages, pensions or other types of income and dispose of them only with the consent of the trustee. He has the right to independently carry out only small everyday transactions (Clause 1 of Article 30 of the Civil Code of the Russian Federation). However, such a citizen independently bears property liability for transactions made by him or for damage caused.

Grounds and procedure for declaring a citizen incompetent

The procedure and grounds for declaring a citizen incompetent are enshrined in civil procedural legislation. In Art. 29 of the Civil Code of the Russian Federation states that only a court can recognize a citizen as incompetent. That is, in order to declare a citizen incompetent, the court must establish the presence of legal and medical criteria in combination.

Medical criterion is the presence of a mental disorder or disease in a citizen.

The legal criterion is the inability to direct one’s actions (volitional aspect) or the inability to understand the meaning of one’s actions (intellectual aspect).

According to Art. 29 of the Civil Code of the Russian Federation, not every mental disorder can be the basis for a citizen’s loss of legal capacity, but only one that does not allow him to direct his actions and realize their meaning and consequences. The Law “On Psychiatric Care and Guarantees of the Rights of Citizens in the Provision of It” states that merely the presence of a citizen in a psychoneurological institution for inpatient or dispensary observation cannot lead to his loss of legal capacity. Namely, based on diagnosis alone, it cannot be said that a citizen is incompetent.

The Civil Procedure Code of the Russian Federation contains articles devoted to the procedure for declaring a citizen incompetent (281-286).

Art. 281 of the Code of Civil Procedure of the Russian Federation states that the following have the right to submit an application to the court to recognize a citizen as having limited legal capacity or completely incapacitated:

family members, psychoneurological or psychiatric institutions, guardianship and trusteeship authorities (in cases of a citizen’s abuse of narcotic drugs or alcoholic beverages - limitation of legal capacity);
close relatives, family members, guardianship and trusteeship authorities, psychoneurological or psychiatric institutions (mental disorder of a citizen - recognition as incompetent).

The application is submitted to the court, either at the citizen’s place of residence, or at the place of the psychiatric or psychoneurological institution in which he is being treated. In order to prepare for the case, the judge, having strong evidence of a citizen’s mental disorder, is obliged to order a forensic psychiatric examination to determine the mental state of the latter (Article 283 of the Code of Civil Procedure of the Russian Federation). Failure of a citizen to undergo this examination entails a court decision to compulsorily send the citizen for a forensic psychiatric examination.

When considering a case on declaring a citizen incompetent and making a decision, the court must proceed from the following facts:

presence of a mental disorder;
a causal connection between a citizen’s lack of understanding of the meaning of his actions, the inability to manage them and mental disorder;
facts confirming that the citizen is not able to direct his actions and cannot understand their meaning;
when a citizen reaches the age established by law, when the question of recognizing him as incompetent becomes a question;
other circumstances.

Evidence required to declare a citizen incompetent:

conclusion of a forensic psychiatric examination;
certificates confirming that the citizen is registered at a psychiatric dispensary;
certificates from a medical institution;
certificates of disability;
evidence of a citizen’s lack of ability to direct his actions and understand their significance (materials from investigative bodies, witness testimony, conclusions of previously conducted forensic psychiatric examinations, etc.);
other evidence.

The Civil Procedure Code implies a presumption of legal capacity of a person, which means that until the corresponding court decision is made and until it comes into force, any person is recognized as legally competent. Therefore, the applicant has the responsibility to prove the existence of circumstances that indicate the incapacity of the citizen concerned. Persons interested in proving the legal capacity of a citizen and objecting to the stated requirement may present in court evidence of the absence of grounds for declaring the person incompetent.

Recognition of a citizen as legally incompetent requires the presence of guardianship and trusteeship authorities, as well as a prosecutor, at the court hearing. The participation of guardianship and trusteeship authorities is due to the need to appoint a guardian or trustee for an incapacitated person. Each of these participants gives its own conclusion when considering cases of this category.

If a citizen recovers, the Code of Civil Procedure of the Russian Federation provides for the procedure for recognizing him as legally competent. This requires a sustainable improvement in the mental state of the person, a conclusion from a forensic psychiatric examination about changes in the mental state of the citizen.

Appointment of a guardian for an incapacitated person

From the moment a court decision declaring a person incompetent comes into legal force, the court is obliged to notify the guardianship and trusteeship authority about this within three days. This rule is followed to establish guardianship over an incompetent person (Article 34 of the Civil Code of the Russian Federation). A guardian is appointed by the relevant authority at the place of registration of the incapacitated citizen.

According to current legislation, the guardianship and trusteeship authority establishes preliminary guardianship for a period of six months within three days. After this time, after the guardian has collected a complete package of documents to establish guardianship in a general manner over an incompetent citizen, the guardianship and trusteeship authority establishes guardianship in a general manner.

If a guardian is not appointed to an incapacitated person within the allotted time, the fulfillment of the duties of the first is assigned to the guardianship and trusteeship body. This provision is aimed at eliminating cases when a guardian is not appointed to an incapacitated citizen for various reasons. As a rule, in such a case, the incompetent citizen is placed in a psychiatric hospital.

Only an adult capable citizen who has given his consent can act as a guardian. A prerequisite for the appointment of a guardian is to take into account his personal and moral qualities, the existing personal relationship between the person in need of guardianship and the intended guardian, as well as the ability to perform guardianship duties. If an incapacitated citizen can express his will, then his wishes are taken into account when appointing a guardian.

Interested persons may challenge the appointment of a guardian over an incapacitated person in court.

The guardians of incompetent citizens who are undergoing treatment in relevant institutions or in institutions for social protection of the population are these institutions (Article 35 of the Civil Code of the Russian Federation). According to Art. 39 of the Civil Code of the Russian Federation, the guardianship and trusteeship authority releases the previously appointed guardian from guardianship duties when placing an incapacitated person in these institutions, provided that this does not contradict the interests of the ward. Before the introduction of this norm, a lot of problems arose associated with the loss of an active connection between the ward and the guardian, who for a long time had been protecting the legal rights and interests of the incapacitated person.

The duties of the guardianship and trusteeship authorities after the appointment of a guardian for an incapacitated citizen include notification of this to the tax authorities, the Federal State Budgetary Institution "Federal Cadastral Chamber of the Federal Service for State Registration, Cadastre and Cartography" about the transfer of the property of the incapacitated person to the trust management of the guardian.

Responsibilities of a guardian of an incapacitated citizen

protection of the rights and interests of the ward;

Applies to relationships with any persons, courts, and so on. For which the guardian does not require special authority (Article 31 of the Civil Code of the Russian Federation, paragraph 5 of Article 37 of the Civil Procedure Code of the Russian Federation). When a guardian seeks help from a lawyer or another person chosen by him as a representative, two representatives may participate in court: the guardian is a legal representative and a lawyer, and the lawyer is an elected representative.

making transactions on behalf and in the interests of the ward, with the prior permission of the guardianship and trusteeship authority (Article 32 of the Civil Code of the Russian Federation);
giving consent to the processing, storage, use and accumulation of data about the ward (Clause 6, Article 9 of the Federal Law “On Personal Data”);
care for the maintenance of the ward (Article 35 of the Civil Code of the Russian Federation);

Applies to care and support, treatment, implementation of an individual rehabilitation program for the incompetent, protection of the interests and rights of the ward. Namely:

· regulation of the implementation of dispensary observation in relation to the ward and the fulfillment of the doctor’s orders by the ward, placement of the ward for inpatient treatment if such a need arises;

visiting a patient in hospital;
safety of the ward’s housing;
monitoring the actions of the ward so that he does not violate other people’s interests and rights;
introducing the ward to work;

As statistics show, proper implementation of guardianship can significantly speed up the rehabilitation of the patient.

If the grounds for which the citizen was declared incompetent are eliminated, the guardian must file a petition to recognize his ward as legally competent.

All income of the ward is spent by the guardian only in the interests of the ward. The guardian, without the consent of the guardianship and trusteeship authority, does not have the right to enter into transactions that entail a decrease in the property of the ward (Article 37 of the Civil Code of the Russian Federation). According to Art. 575 of the Civil Code of the Russian Federation, a guardian does not have the right to make gift transactions on behalf of an incapacitated citizen, excluding ordinary gifts worth up to five times the minimum wage.

Resolution No. 927 of November 17, 2010 “On certain issues of guardianship and trusteeship in relation to adult incompetent or partially incompetent citizens” provides for the guardian’s reporting on the exercise of his powers, which has a positive impact on the protection of the interests and rights of incompetent citizens.

Guardianship and trusteeship authorities are called upon to supervise the activities of guardians (Clause 3, Article 34 of the Civil Code of the Russian Federation). The competence of the guardianship and trusteeship body includes the release of a guardian from the duties of a guardian.

Exemption from the performance of guardianship duties over an incapacitated citizen is carried out:

at the personal request of the guardian, if there are good reasons;
by a court decision when the ward is recognized as legally competent.

Removal from the performance of guardianship duties over an incapacitated citizen is carried out:

• by decision of the guardianship and trusteeship authority in case of improper performance of the duties assigned to the guardian (using guardianship for personal gain, leaving the ward without the necessary help or without supervision).

What documents need to be submitted to the court?

In order to legally recognize a person as incompetent, the following documents must be submitted to the court:

Statement of claim.
Documents confirming the presence of mental illness.
If the plaintiff is a close relative of a mentally unstable citizen, it is necessary to document the relationship.
If the applicant is a person who lives together with an incapacitated person, it is necessary to provide a certificate of family composition.
Defendant's passport (if available).
Petition to order a forensic psychiatric examination.
Receipt for payment of state duty.

Currently, the state duty is 300 rubles. This amount of money is charged on the basis of paragraphs. 8. clause 1 art. 333.19 Tax Code of the Russian Federation.

It should be noted that the defendant has the right to undergo a forensic psychiatric examination voluntarily before the start of the trial. However, if he refuses to undergo it, the plaintiff has the right to apply for it. To do this, the judge makes an appropriate ruling.

An examination of the defendant’s mental state may be carried out:

Outpatient

To a medical institution that provides specialized care to an incapacitated person

The maximum duration of the examination is 30 days. After this, the commission issues an opinion in which it describes its own conclusions.

A person who has been declared incompetent is deprived of the right to make any transactions of a property or non-property nature on his own behalf. Many people mistakenly believe that a guardian has the right to independently dispose of the real estate of his ward. This is a misconception. Any transactions with the movable and immovable property of a disabled person can only be made with the consent of the guardianship and trusteeship authority.

Limitation of legal capacity of alcoholics, drug addicts, and gamblers.

For persons who do not suffer from mental illness, but who, as a result of addiction to gambling, alcohol or drug abuse, put their family in a difficult financial situation, the law provides for the possibility of limiting their legal capacity in court.

The procedure for filing an application for limitation of legal capacity in court and the procedure for considering the case in court is similar to the procedure for declaring a person incapable.

See the procedure for declaring a person incompetent in 5 steps.

However, restrictions on legal capacity have their own characteristics, which we will now consider.

A family member of the specified person has the right to apply to the court to limit legal capacity.

Attention!
The applicant must confirm his relationship with the person in respect of whom the application for limitation of legal capacity is being submitted. Documents confirming relationship can be a marriage certificate for a spouse, a birth certificate for parents and children.

An application for limitation of legal capacity is submitted to the district court at the place of residence (registration) of the person recognized as having limited legal capacity.

The application for limitation of legal capacity shall be accompanied by documents confirming the relationship with the applicant, as well as evidence confirming the abuse of alcoholic beverages or drugs, or addiction to gambling.

Evidence of alcohol and drug abuse may include certificates from neuropsychiatric and narcological clinics, extracts from the medical history, various medical documents, and witness testimony.

Evidence of gambling addiction can be provided by an expert’s opinion or witness testimony.

Attention!
Along with the fact that a person has a psychological dependence on alcohol, drugs or gambling, the applicant must prove to the court that this dependence puts the family in a difficult financial situation.

The court must see that there is a loss of control, entailing an unreasonable waste of money that should have been used to support family members.

If the court makes a decision to limit the abusive person’s legal capacity, the person with limited legal capacity will have the right to carry out only small everyday transactions. For example, purchasing food and small household items.

A person with limited legal capacity has the right to spend wages, benefits, pensions, large amounts of money, as well as make large transactions only with the consent of the guardian. (Article 30 of the Civil Code of the Russian Federation).

How is the procedure done?

The application can be submitted by spouses, other persons living together with the citizen, children over 18 years of age, parents, brothers, sisters, guardianship service, psychiatric treatment institution or institution for permanent residence of disabled people. In addition to the application, they can also present to the court certificates from a medical institution. The judge, having received documents containing strong evidence of a citizen’s mental disorder, is obliged to order a forensic psychiatric examination (Article 283 of the Code of Civil Procedure of the Russian Federation). If she refuses, she will be forced to do so.

Evidence for declaring a person incompetent will ultimately be the conclusion of a court-appointed forensic psychiatric examination. Until the corresponding court decision is made and comes into force, any person is recognized as legally competent. Those who are interested in proving a citizen's capacity can file an appeal by presenting to the court evidence that there are no grounds for the previous decision.

The Civil Procedure Code also provides for the procedure for recognizing a person as legally competent. This requires a sustained improvement in the person’s mental state and a conclusion from a forensic psychiatric examination about changes in his mental state.

How else can you check your capacity?

Sometimes it happens that the seller refuses to provide a certificate, but at the same time he is completely sane and can conclude transactions. Here's what helps determine the legal capacity of an apartment seller in the absence of appropriate documents:

Driver's license. If the seller has it, it means he has already been examined at drug treatment and psychoneurological dispensaries, and successfully.
Invitation of a medical professional at the conclusion of a transaction for a third-party examination. A professional can help you accurately determine the seller's condition.
Personal assessment. You can independently assess the general adequacy of a person by his behavior, communication with his neighbors and relatives, and the content of social networks. Of course, it is not always possible to identify serious deviations in this way (unless the buyer is an experienced psychologist), but this is quite enough for a general verdict.
Connecting a notary to the transaction. If he certifies the contract, then he acts as a guarantor of the transaction and is responsible for his actions. In addition, he has the right to request the information he needs, bypassing the seller.

In what cases is it recommended to obtain a certificate?

The certificate of legal capacity itself is not a mandatory document in real estate transactions; it can only act as an additional guarantor. By default, all transactions must be made in sound mind and good memory: the same Civil Code speaks about this. However, there are still a number of situations when obtaining a certificate of the seller’s legal capacity, to put it mildly, would not hurt. Here they are:

the seller is registered in a psychoneurological or drug treatment clinic;
the seller has previously been treated for mental disorders;
bona fide relations between the buyer and seller as individuals are enshrined in the contract and notarized;
the seller is an elderly person;
the seller is from 14 to 18 years old (in this case, the consent of his guardian or legal representative is also required);
the parameters and prices under the contract are clearly underestimated compared to the market average;
a notary or one of the participants doubts the seller’s legal capacity (a similar situation, however, may arise in relation to the buyer).

In addition, sometimes the former owner may turn out to be dishonest and sue the buyer, trying to challenge the transaction. The situation can again be saved by a certificate of legal capacity, confirming that the seller acted in his right mind. Such a certificate is often taken when a notary is involved in a transaction: there have been many precedents for the cases described above. Of course, the seller is not obliged to provide a certificate upon request: it is not included in the list of mandatory documents and is done voluntarily (even if its absence is fraught with risk). But if the seller flatly refuses to provide it, this is a cause for concern.