Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
A person is declared legally incapacitated if s/he is incapable of taking care of him/herself or property due to a permanent mental illness which eliminates the use of reason or due to physical disability (particularly if the person had been born deaf, blind or dumb). Incapacitation is declared by the judicial decision of a Court of Law and can be requested by means of a petition by any member of the family, the spouse, guardian, tutor or Public Prosecutor. This is dealt with in article 1688 of the civil code.
However, according to article 802 of the Civil Procedure Code, any person who has a lawful interest can nominate a trustee and this person has the right to make a petition for incapacitation. This extends the number of people who are authorised to make such a request. The opinion of the family council must be included with the petition. The spouse of the person who is to be incapacitated as well as the person making the request attend the council in order to provide information on the person but they cannot take part in the decision making process or give their opinion. Once a person has been declared incapacitated, s/he is incapable of any legal act.
According to article 1705 of the civil code, if the mental disorder is not sufficiently severe to warrant incapacitation in that the person concerned has not lost full use of the senses but there is a weakness of the mind, the person is liable to judicial receivership. This also applies in the case of physical disability which does not cause total disability or prevent the person from taking care of him/herself or managing his/her own affairs. The same procedure for judicial incapacitation (involving a petition) applies to judicial receivership, as does the procedure for termination, although in both cases termination is unlikely in the case of dementia.
Proxy decision making
Conditions for the appointment of a guardian
The system of guardianship is linked to the process of incapacitation in that once a decision has been taken to declare a person incapacitated, s/he is placed under guardianship. However, as stated above, a judicial receiver (legal counsellor) may be appointed for people who still have some capacity.
How guardianship is arranged
The process for incapacitation is closely linked to that of setting up guardianship. According to article 1694 of the Civil Code, once the decision for incapacitation has been made, a guardian and deputy guardian are appointed according to the provisions for the appointment of guardians for minors.
Alternatively, if the future ward still has some capacity, a legal counsellor may be appointed (please see section on incapacitation).
Who can be a guardian
According to article 1696 of the Civil Code (CC) the guardianship of a married incapacitated person goes in the first instance to the spouse, unless there is an objection from the incapacitated person or anyone else who has a lawful interest in his/her welfare. In this case, the court has the right to choose an alternative solution which s/he considers to be in the best interests of the person concerned.
The duties and responsibilities of guardians
- A person who has been declared incapacitated (and hence has had a guardian appointed) loses the right to carry out any legal act.
- A person under judicial receivership must obtain the consent of the legal counsellor for the following acts:
- Appear in court
- Make or receive a payment
- Sell immovable assets, government shares or company bonds
- Establish alliance or arbitration agreements
- Assume foreign obligations, in particular providing guarantees
- Accept or renounce an inheritance
- Renounce a bequest
- Accept a bequest or gift that involves burdens
The judicial counsellor can consent before or after the act, but if s/he refuses to consent, the person under judicial receivership can appeal to the Court which is then responsible for the final decision (article 1708 CC).
How the financial affairs of the ward are handled
Article 1698 of the Civil Code states that the provisions for the guardianship of incapacitated adults are the same as those for minors. Precise details are missing.
Duration of guardianship
If the reasons which led to incapacitation are no longer valid, it can be terminated by judicial decision.
Capacity in specific domains
Marriage and divorce
People with dementia who have been declared incapacitated cannot marry or divorce. There have been numerous cases of divorce due to undiagnosed cases of Alzheimer's disease but once the divorce has been granted, it cannot be annulled. On the other hand, the former spouse may claim and be granted guardianship as well as supervision of the spouse who is suffering from dementia, especially when there are children and none of the other family members have any objections (Lecca Marcati ).
If a person carries out an act, which by law requires the consent of a judicial counsellor, and consent was not obtained, the act can be declared null and void (art. 1709 CC). Only the counsellor, the person under judicial receivership and his/her universal and special successors can recommend nullity.
The heirs of a deceased person can appeal against non-gratuitous legal acts that were carried out by or against him/her on the grounds of insanity (art. 1695 of CC) if:
• the person had been declared incapacitated during his/her lifetime
• the legal act was attempted at a time when the person was receiving treatment in a lunatic asylum.
• the legal act which is under dispute is in itself proof of lunacy.
The Greek Inheritance law is regulated by articles 1710 to 2035 of the Greek Civil Code. There are three types of will:
• A holographic will which is handwritten, dated and signed.
• A public will which is made before a notary in the presence of three witnesses.
• A secret will which is handed in a sealed envelope by the testator to a public notary in the presence of three witnesses. For public and secret wills, the three witnesses can be replaced by another notary and one witness.
Any person over the age of 18 and of sound mind may make a will. Consequently, a person who has been declared incapacitated cannot make a will.
If a person dies without having made a will, his/her assets are divided amongst his/her next of kin according to a predetermined order of eligibility because Greece has a system of forced heirship (AngoInfo, 2010).
There are no provisions in the Penal Code or Civil Code concerning legal responsibility in the case of mental incapacity. Nevertheless, a person who has been diagnosed as having dementia who commits a crime is not prosecuted or punished as s/he is considered to be lacking mental capacity.
If the crime was committed before the diagnosis of dementia, but the court case takes place after diagnosis, a post-dated certificate may be obtained from the State Neurological Hospital. This may be accepted on the good will and discretion of the Judge as having valid retroactive legal validity (Lecca Marcati ).
- AngloInfo Ltd (2010), Wills and inheritance law in Greece, Article accessed online on 10 September 2010 at: http://greece.angloinfo.com/countries/greece/wills.asp
Last Updated: mardi 27 mars 2012