2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
The General Part of the Civil Code Act of 27 March 2002 defines passive legal capacity and active legal capacity. Passive legal capacity begins with the birth of a person and ends with his/her death. Active legal capacity is the capacity to enter independently into valid transactions. A person has restricted active legal capacity if s/he is permanently unable to understand or direct his/her actions due to mental illness, mental disability or another mental disorder. A person who has had a guardian appointed by a court is presumed to have restricted active legal capacity.
Proxy decision making
The Code of Civil Procedure of 20 April 2005 (which entered into force on 1 January 2006) deals with the appointment of a guardian for people with restricted active legal capacity.
Conditions for the appointment of a guardian
If the court has information or suspects that a person has a mental illness or mental disability, the court shall order a forensic psychiatric examination in order to determine whether a guardian should be appointed.
How guardianship is arranged
A representative may be appointed if this is in the interests of the person for whom the guardianship measure is intended, particularly if the person is not already represented by someone with active civil procedural legal capacity and s/he is likely to need guardianship to manage most or all of his/her affairs. (§520)
The court may decide to establish provisional legal protection and appoint a temporary guardian (§521) if the following three conditions are fulfilled:
- It may be clearly presumed that the conditions for appointment of a guardian are complied with and a delay would endanger the interests of the person in need of guardianship;
- A representative has been appointed;
- The person him/herself has been heard.
If, on the other hand, there are doubts as to whether the person has a mental illness or mental disability, the court must order a forensic psychiatric examination in order to determine whether a guardian should be appointed. Before the expert opinion can be given, the expert must personally examine the person for whom guardianship is being considered. If the latter does not attend the appointment with the expert, the court may, after hearing the opinion of a psychiatrist, compel him/her to attend. (§522)
The person may be placed in a medical institution for up to one month for the purposes of the examination. This can be extended to 3 months if necessary. Before a decision can be made, the person must be heard.
The examination is not considered necessary if the following 3 conditions are met:
- The petition for appointment of a guardian was submitted by the person him/herself and documents pertaining to his/her state of health are included.
- The person waives the right to undergo an examination.
- Conduct of an examination would be unreasonably costly or labour intensive considering the volume of the guardian’s duties. (§522)
The court may request information from the rural municipal or city government of the residence of the person in need of guardianship. Such information may include, amongst other things, the choice of guardian, changing the sphere of the guardian’s duties and changing the guardian. (§523)
The person may be asked to appear in court during the proceedings unless this is not considered necessary or advisable e.g. if in an expert’s opinion this could be detrimental to the person’s health or if the court is convinced that the person is unable to express his/her will. (§524)
As a general rule, the court also hears the opinion of the person’s spouse and other people who are close to him/her, as well as the person that the court intends to appoint as guardian. (§525)
The court discusses the results of the hearing with the person for whom the measure is proposed. This discussion covers the contents of the expert opinion or documents relating to his/her health, the possible choices of guardian and the sphere of duty of the intended guardian. (§525)
The appointment of a guardian for a person with restricted active legal capacity is established by means of a ruling in which it is stated: for whom a guardian is appointed, the person or agency appointed as guardian, his/her duties, which transactions the person can perform with the consent of the guardian, the duration of the guardianship measure (which cannot be longer than 3 years) and the right of the guardian to represent the person. If the guardian is responsible for handling all the affairs of the person, the ward is additionally deemed to be without active legal capacity. (§526)
Who can be a guardian
When the judge discusses the results of the hearing with the future possible ward, this includes a discussion about the possible choices of guardian.
The duties and responsibilities of guardians
The duties and responsibilities of guardians are established in the court procedure and confirmed by court ruling at the end of the process.
Compensation and liability of guardians
The court may determine the extent of the remuneration to be provided by the ward or the state to the guardian, any expenses that should be refunded, the size of any advance payments and any payments that the ward should pay to the state. Before making a ruling on costs, the court must hear the ward. The ward has the right to apply for assistance in relation to these costs and may appeal against the ruling on costs if such costs exceed 3,000 kroons. (§527)
According to paragraph 171 of the Penal Code:
“A person who abuses his or her rights of guardianship or curatorship in order to increase his/her own assets out of the assets of the person under his or her guardianship or curatorship, or acts in any other manner against the proprietary or personal rights or interests of the person under guardianship or curatorship, shall be punished by a fine or up to 3 years’ imprisonment.“
Duration of guardianship
If the conditions which led to the appointment of a guardian cease to exist, either partly or completely, the court terminates the guardianship measure, restricts the sphere of duties of the guardians or extends the rights of the ward to perform transactions independently. A psychiatric evaluation must be carried out in order to ascertain whether the conditions have ceased to exist (§529).
Capacity in specific domains
Marriage and annulment
The Family Law Act of 18 November 2009, which entered into force on 1 July 2010, states that a person with limited legal capacity may only marry if s/he can adequately understand the legal consequences of marriage (§1.4). If a person has had a guardian appointed, it is presumed that s/he does not understand the legal consequences of marriage, except in cases where a legally appointed guardian indicates otherwise.
In §9 a few cases are described which would justify the annulment of the marriage by the court. Amongst these, the following are particularly relevant:
- Entering into a marriage or the marriage being in breach of the requirement of capacity
- At least one of the spouses during the marriage had a temporary mental disorder, or for some other reason was unable to decide
- Entering into marriage on the basis of fraud, threat or violence, including hiding the spouse’s health status or other personal circumstances of relevance to the marriage
According to §526 of the Code of Civil Procedure, if the courts establishes guardianship for all the affairs of the ward or if the guardian’s sphere of duties is extended in such a manner, the ward is deemed to be without active legal capacity. This means that s/he loses the right to vote. In such cases, the court notifies the agency maintaining the polling list (§531). Restrictions on voting are also contained in the Constitution of 28 June 1992 and the Riigikogu Election Law of 12 June 2002.
Article 57, section (2) of the Constitution states,
"An Estonian citizen who has been declared mentally incompetent by a court of law shall not have the right to vote."
Article 4, section (2) of the Riigikogu Election Law states:
"A person who has been divested of his or her active legal capacity by a court does not have the right to vote."
Provisions relating to contractual capacity can be found in Division 1 of the General Part of the Civil Code Act of 27 March 2002.
A multilateral transaction (i.e. a contract) is considered void if it was entered into by a person with restricted active legal capacity without the prior consent of his/her legal representative unless the latter subsequently ratifies the transaction. The other party to the transaction can withdraw unless the legal representative has already ratified it. The transaction is valid if the legal representative gave the person with restricted active legal capacity the authorisation to make such transactions beforehand. If the other party to the transactions asks the legal representative to ratify the transaction and the legal representative does not do so within two weeks, the transaction is deemed not to have been ratified. (§11)
The issue of transactions made by people without capacity to exercise will is addressed in §13 which states:
- A transaction which a person due to a temporary mental disorder or other circumstances enters into in a condition which precludes his or her ability to accurately assess the impact of the transaction on his or her interests (incapacity to exercise will) is void unless the person ratifies the transaction after cessation of the temporary mental disorder or other circumstances.
- The other party to a transaction may make a proposal for ratification of the transaction to the person who entered into the transaction while incapacitated to exercise will. If the person does not refuse ratification within two weeks after receipt of the proposal, the person is deemed to have ratified the transaction.
- If a transaction entered into by a person under the circumstances specified in subsection (1) of this section is clearly harmful to him or her, the person is deemed to have entered into the transaction while incapacitated to exercise will.
According to the Law of Succession Act of 17 January 2008, which came into force on 1 January 2009, there are two main types of will: 1. notarial, 2. domestic.
A notarial will is either signed in the presence of a notary or given in a sealed envelope to a notary who then attests having received it from the testator and that it is the latter’s will (in which case, they both sign a deed to that effect). Such wills can be retrieved by the testator at any time. It is not actually stated in the law that the testator has to have legal capacity to make a notarial will but this is presumably the case (§22).
A domestic will must be signed in the presence of two witnesses (not close family members who stand to inherit). As soon as the testator has signed his/her will, the witnesses confirm by their signatures that in their opinion the testator had active legal capacity and the capacity “to exercise will” (§23). The testator is not obliged to let the witnesses see the content of the will (§23).
Another way to make a domestic will is to write it from beginning to end by hand, sign it and include the date and year it was made. If, once written, signed and dated, it is handed over to a notary, who prepares a notarial deed, it becomes valid as a notarial will (§24).
If six months after writing a domestic will, the testator is still alive, the will is no longer valid. It is also considered invalid if it is not clearly dated. Also, if the date and year the will was made are not stated and it is not possible to establish when the domestic will was made, the domestic will is considered void (§25).
The following extracts from the Penal Code (consolidated text April 2008) are relevant to criminal responsibility in the case of people with incapacity:
§ 32. Principle of guilt
- A person shall be punished for an unlawful act only if the person is guilty of the commission of the act. A person is guilty of the commission of an act if the person is capable of guilt and there are no circumstances which would preclude guilt pursuant to the provisions of this Division.
- An offender shall be punished according to the guilt of the offender, regardless of the guilt of other offenders.
§ 33. Guilt capacity
A person is capable of guilt if at the time of commission of the act he or she is mentally capable and at least 14 years of age.
§ 34. Mental capacity
A person is not mentally capable if at the time of commission of an act he or she is incapable of understanding the unlawfulness of the act or incapable to act according to such understanding due to:
- a mental illness;
- a temporary severe mental disorder;
- mental disability;
- feeble-mindedness, or
- any other severe mental disorder.
§ 35. Diminished mental capacity
If the capacity of a person to understand the unlawfulness of his or her act or to act according to such understanding is substantially diminished due to one of the reasons specified in § 34 of this Code, the court may apply the provisions of § 60 of this Act.
Last Updated: Tuesday 27 March 2012