Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
In 1989, the system of legal incompetence was replaced by the system of administrators. The main guiding principle of this reform was that it was considered that a declaration of incompetence was perceived as degrading.
Proxy decision making
Three different forms of guardianship exist in Sweden: guardian (for minors under 18), custodian (god man) and trustee (förvaltare).
Conditions for the appointment of a guardian
According to the Code on Parenthood and Guardianship (SFS 1949:381 chapter 11, paragraph 4):
“If, because of sickness, mental disorder, a weakened state of health or the like, a person needs assistance in safeguarding his rights, administering his property or providing for his needs, the Court shall, if needed, appoint a custodian (god man) for him.”
According to paragraph 7:
“If a person who is in such a situation described in paragraph 4 is unable to take care of himself/herself or his/her property the court can appoint a trustee (förvaltare) for him or her.”
A custodian (god man) is usually appointed when a person is unable to manage his/her own financial affairs and has no other means of assistance. It is frequently used in cases of dementia. The system of trusteeship, on the other hand, is used when the conditions for appointment of a custodian exist, but it is felt that the need is not sufficient to warrant such an appointment (in which case a trustee may be appointed).
How guardianship is arranged
The request for a custodian (god man) can be made by the person concerned, the immediate family and the chief guardian or the Public Trustees´ Committee. An application must be made and sent to the Public Trustees' Committee, along with a social welfare report outlining the reasons for the application. If possible this should be approved by the person for whom the request is being made. If not, the application must be accompanied by a medical certificate stating that the person in question was unable to consent. A copy of the person's birth certificate must also be included in the application. If a particular custodian is to be proposed, s/he must confirm his/her willingness to take on the responsibility. The Public Trustees' Committee then carries out an examination and afterwards submits an application to the District Court. Once the District Court has made its decision, it issues a custodian's authorisation which the custodian can then use as a means of identification and proof that s/he is the custodian.
The appointment of a trustee (förvaltare) involves more or less the same procedure. However, if at all possible, the District Court prefers to have a verbal examination of the person for whom the application is being made. A doctor's report must be provided and unless obviously unnecessary, statements must be obtained from the spouse, close relatives, the Public Trustees' Committee and the Social Welfare Committee.
Who can be a guardian
The conditions for someone to be appointed as custodian or trustee are that the person is honest, has relevant experience and is an eligible man or woman.
The duties and responsibilities of guardians
It is the duty of the custodian to ensure that the ward receives the care and supervision that s/he needs. As a rule, the custodian also has responsibility for the ward's financial affairs.
Trusteeship replaced the system of declaring people incompetent, which was discontinued in January 1989. The duties of the trustee differ from one case to the next according to the particular needs of the ward. The trustee may be limited to managing the ward's property or part of his/her capital. The ward then loses the right to make decisions relating to such matters, but retains his/her legal competence in all other matters.
How the financial affairs of the ward are handled
Within one month of being appointed, the custodian has to submit a list of the ward's assets and liabilities to the Public Trustees' Committee. This must include personal details of the ward, a list of assets, a list of bank assets (including the names of bank, account numbers and statements of accounts), details of securities (shares and bonds), details of real estate, details of owner-occupied dwellings and details of liabilities. Personal details of the custodian should also be included.
Certain bank accounts must be blocked to prevent unauthorised withdrawals. If it is necessary to access these funds, the approval of the public trustee must be obtained. Funds needed to cover daily expenses can be placed in an unblocked account. All accounts remain in the name of the ward.
The custodian should contact the ward's landlord/landlady, the telephone company and the insurance company etc. so that future bills can be sent to the correct address.
The duties of the trustee are determined on a case by case basis.
Measures to protect the ward from misuse of power
It is the duty of every municipality to appoint either a single public trustee or a committee of public trustees, whose task it is to supervise the guardians (for minors), trustees and custodians. The aim of this supervision is to ensure that the rights of the elderly, sick, handicapped and minors are respected.
It is the responsibility of the public trustee or Committee of public trustees appointed by the municipality to supervise the work of trustees and custodians. Every year, an account of the administrative work of the preceding year must be submitted by trustees and custodians to the public trustee. The annual account must contain details of assets and liabilities, income and expenditures, a statement of bank accounts (including deposited securities and certificates for other funds) and details of any blocked accounts. A final account must be submitted when the assignment comes to an end or the ward dies. The public trustee who examines the accounts can set a fee for this task.
Compensation and liability of guardians
Both custodians and trustees receive fees for their services and can also receive compensation for costs. Fees and compensation for costs are paid from the ward's funds if his/her income totals more than twice the base amount or if his/her assets exceed three times the base amount. If this is not the case, the set fees are paid by the municipal authority. This is determined by the public trustees.
Duration of guardianship
The guardianship measure lasts until it is no longer needed. Decisions regarding the discontinuation of guardianship measures are made by court or the chief guardian.
The right to appeal
People who are affected by decisions made by a district court with regard to guardianship have the right to appeal.
Capacity in specific domains
Marriage and divorce
In order to marry, a person must be at least 18, not closely related to his/her future partner and not already married. Up until 1989, people who were under guardianship had to obtain special permission to get married This is no longer the case and a person for whom a trustee or custodian has been appointed can still get married without needing to first obtain permission.
According to Sparring Björkstén (2008), there are no explicit requirements in Swedish law that the people contracting a marriage should actually understand the significance of it. A case in which a person with dementia married someone without dementia was taken to the Supreme Court (1994: 23). It was stated that the parties contracting a marriage must understand what they are doing and that it is the duty of the person officiating at the marriage to check that this is the case.
A person who is a Swedish citizen and at least 18 years of age may vote, as the system of declaring a person incapacitated has been abolished. Moreover, anyone who has the right to vote can also run for office (Sparring Björkstén, 2008).
Since the practice of declaring a person incompetent has been abolished, even a person suffering from severe dementia retains his/her capacity to enter into legal relations. However, a contract can be rendered invalid.
The law of 1924 (SFS 1924:323) on the Effect of Contracts Concluded Under the Influence of a Mental Disturbance states that a contract is invalid if it was made by someone who was suffering from a mental disorder at the time. In such cases, the parties making the deal must return any goods which were exchanged and if this is impossible must provide appropriate compensation. In 1991, another paragraph was added (SFS 1991:1550) which states:
"Anyone with whom a contract is concluded in good faith has, to such an extent as is found reasonable, a right to receive compensation for the loss occasioned by the contract."
The following two articles in the Inheritance Code (SFS 1958: 637) cover the issue of validity of wills.
“A will that has been written under the influence of a mental disorder is not valid.” (Chapter 13, §2)
“If someone has forced the testator to write his/her will or abused his/her lack of judgement, weak will or dependence, the will is not valid.” (Chapter 13, §3)
If someone wants to challenge a will, they must go to court and it is their responsibility to find expert witnesses. People do not usually have a medical assessment before writing a will and most doctors are reluctant to be expert witnesses (Sparring Björkstén, 2008).
Chapter 2, paragraph 5 of the Damages Act (SFS 1972:207) deals with the responsibility for damage brought about by oneself when suffering from a mental disorder. The text reads as follows:
"Anyone who inflicts damage upon persons or things under the influence of a serious mental disorder or of any other mental disorder that is not self-inflicted and temporary shall make compensation for the damage to such extent as is reasonable, account being taken of his/her mental condition, the character of his/her actions, available liability insurance and other financial resources as well as other circumstances.”
According to Chapter 30, section 6 of the Criminal Code:
“A person who commits a crime under the influence of a serious mental disturbance may not be sentenced to imprisonment. If, in such a case the court also considers that no other sanction should be imposed, the accused shall go free from sanction.” (Law 1991:1138)
- Sparring Björkstén, K. (2008), Practice of competence assessment in Sweden. In Stoppe, G. (Ed.) (2008), Competence assessment in dementia, Springer Verlag, Wien, pp. 161-163
Last Updated: mercredi 28 mars 2012