2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
Every person is considered as having legal capacity from the moment s/he is born until the moment s/he dies. The subject acquires Legal competency with increasing age (for penal as well as labour legal competency from the age of 15). Complete legal competency is acquired when a person reaches 18 years of age and it covers each person’s competency to acquire rights and to carry out legal acts for which they are legally responsible.
In accordance with §10 of the Civil Code, a person who is completely incapable of legal acts due to a permanent mental illness shall be deprived by court of his/her legal competency. The procedure usuallyinvolves a civil court trial. A person with a permanent mental illness who is nevertheless capable of certain legal acts shall have his/her legal capacity to act restricted by court. The court decision shall specify the extent of such restriction which can be amended or cancelled should the person’s mental state change.
Anybody who is competent can request the restriction, deprivation or restoration of another person’s legal capacity. The trial is free of charge (Baštecký, 1997). A medical record may be required and the person whose capacity is under review may be questioned by the court (but this is not essential). An expert is also interviewed. S/he may suggest a period of up to six weeks observation of the person in a medical institution. Information is also collected about the person’s ability to carry out daily tasks and manage his/her finances. If the person has a spouse and/or adult children, their behaviour is also considered. The actual court case is usually completed within a couple of months. If the court decides to limit legal competence, it may also define the extent of the limitation. This is then valid from that point on. It cannot have a retroactive effect (Holmerová et al., 2008).
Proxy decision making
Conditions for the appointment of a guardian
Paragraph 26 of the Civil Code (CC) states that an individual who is not capable of legal acts shall be represented by a legal representative. Paragraph 27 subsection 2 further states that an individual who was deprived of his or her legal capacity to act by a court decision or whose legal capacity to act was restricted by a court decision shall be legally represented by a court appointed curator. The terms “legal representative” and “curator” seem to be used interchangeably. Hereafter, I will use the general term “guardian”.
The court may appoint a guardian for a person of no fixed abode if it is necessary for the protection of that person’s rights or if it is in the interests of the public (§29 CC).
How guardianship is arranged
Guardianship is arranged in court in combination with the process of restricting legal capacity. According to §186 of the Act on the Code of Civil Procedure, a petition for the commencement of proceedings to deprive a person of the legal capacity to act may be filed by a healthcare institution or other interested parties. Unless the petition for commencement of proceedings was filed by a state authority or by a healthcare institution, the court may order that the petitioner submit within an adequate period a medical report on the mental condition of the person examined. If no medical report is submitted during this period, the court may stay the proceedings.
The court examines the person for whom the guardianship measure is intended unless this is likely to be detrimental to that person’s health. In all cases, the opinion of an expert on the condition of the future ward is heard (§187 of the Code of Civil Procedure). The person may be involuntarily detained for up to six weeks whilst the assessment is being carried out.
The person who has been deprived of the legal capacity to act can file a petition for the restoration of his/her capacity. If the court dismisses the petition or decides that the person’s capacity cannot be expected to improve, it may decide that this right cannot be exercised for a certain period of time which should not exceed 1 year (§186 of the Code of Civil Procedure).
The cost of the proceedings is borne by the State, but the court may rule that the person (whose capacity was being considered) reimburse the State. A person who files a petition for the deprivation or restriction of the legal capacity to act of another person may be required to compensate the latter, his/her representative and the State if it is found that the petition was obviously unreasonable (§191 of the Code of Civil Procedure).
Who can be a guardian
A relative of the individual is usually the first choice as curator. If this is not possible, another person meeting the necessary requirements may be appointed. It is also possible for an authority of the local administration or a representative of that authority to be appointed by the court as curator (§27 subsection 3 of the Civil Code).
The duties and responsibilities of guardians
The duties and responsibilities of the guardian are defined by the court. The guardian then carries out those duties and must obtain the approval of the court for other acts which are outside of his/her responsibility.
Measures to protect the ward from misuse of power
If there is a conflict of interests between the legal representative and the ward or between more than one person represented by the same legal representative, the court appoints a special representative /guardian ad item/ (§30 CC).
If the guardian has been granted the right to manage the property of the ward, the approval of the court is necessary to dispose of any property (§28 CC).
The court supervises the administration of the ward’s assets by the guardian and takes any necessary and suitable measures to ascertain and conserve these assets. At the end of the guardianship period, the curator must give the court a final account of the administration of assets. The court may also order that the guardian submit regular reports on his/her activities during the period of guardianship (§193 CC).
Duration of guardianship
The law does not determine the duration of guardianship and does not request a regular appellate review of guardianship. The court will change or repeal the guardianship if the reason which led to it ceases to exist (§ 10 CC).
The right to appeal
An adult person who has been placed under guardianship has the right to request the termination of guardianship (and the restitution of legal competency) about once a year.
Continuing powers of attorney
The Civil Code contains a few paragraphs on powers of attorney. However, it is not clear from the text whether this measure also applies to people lacking the legal capacity to act.
Capacity in specific domains
Marriage and annulment
Paragraph 14 of the Family Act No. 94/1963 Sb. (FA) on Family contains the following conditions for marriage and annulment in the case of people with incapacity:
- A person deprived of capacity to legal acts cannot enter into marriage.
- A person whose capacity to legal acts is restricted may enter into marriage only with an approval of court.
- A marriage cannot be entered into by a person suffering from a mental disorder that would lead to a restriction or deprivation of capacity to legal acts. However, in the case of a person suffering from a mental disorder that would lead to restriction of capacity to legal acts, the court may approve of the marriage if the health condition of the person is compatible with the purpose of marriage.
- If a marriage is entered into by a person deprived of capacity to legal acts or by a person suffering from a mental disorder that would lead to deprivation of capacity to legal acts, the court shall declare the marriage invalid even without a petition.
- If a marriage is entered into by a person whose capacity to legal acts is restricted or by a person suffering from a mental disorder that would lead to deprivation of capacity to legal acts without the approval of a court, the court shall declare such marriage invalid upon a petition of any of the spouses. The court shall not declare the marriage invalid if the health condition of the person became compatible with the social purpose of marriage.
According to Act No. 247 on Elections to the Parliament of the Czech Republic, and on Amendments of Certain Other Acts of 1995, every person who has reached the age of 18 may vote (article 1, §2) unless s/he has been incapacitated for the performance of all legal acts (article 2).
There are also restrictions on voting locally which include people who are residing in local hospitals, residential homes or rest homes (article 6).
In the Ruling of 12 July 2010, in accordance with article 89 subsection 2 of the Constitution, the Constitutional Court of the Czech Republic obliged the civil courts to consider carefully every particular individual case in order to determine whether the loss of the right to vote is justified.
§38 of the Civil Code states that a legal act is invalid if it was carried out by a person with incapacity for legal acts. Similarly, a legal act by a person who has a mental disorder, which renders him/her incapable of such act, is also invalid.
Chapter 3 (§§476-480) of the Civil Code (on wills) does not mention the need to have the capacity to make a valid will. The witnesses’ role is not described as certifying that the testator had capacity, but merely that s/he wrote and signed the testament.
§ 422 CC regulates the responsibility for damage incurred by people who cannot judge the consequences of their acts. A person with a mental disorder is responsible for damage s/he causes when capable of controlling his/her acts and of judging the consequences of his/her acts. His/her guardian is jointly and severally responsible.
According to §12 of the Penal Code a person who, due to mental disorder, at the time the criminal act was committed, was not able to recognise the dangerousness of the act committed or to control his/her behaviour, is not criminally responsible.
- Baštecký, J (1997), Psychiatrie, právo a společnost, Galén, Praha, pp. 99-102
- Holmerová, I., Rokosová, M., Jurašková, B., Vaňková, H., Čvančarová, H. Karmelitová, P. and Provazníková, E. (2008), Practice of competence assessment in dementia: Czech Republic. Ed. Gabriela Stoppe (2008), Competence assessment in dementia, Springer Wien New York.
Last Updated: Tuesday 27 March 2012