2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
Under the Hungarian Civil Code of 1959, a person may be considered incompetent due to age (under 14), illness or state of mind. Sections 14 and 15 define diminished capacity and legal incompetency as follows:
Persons of legal age shall be of diminished capacity if a court has placed them in the custody of a guardian to that effect.
(4) Persons whose necessary discretionary ability for conducting their affairs is - owing to their mental state, unsound mind, or pathological addiction - permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters shall be placed by a court in a guardianship that limits their competency.
(5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision.
(6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters:
i. requests for social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B;
ii. right of disposition concerning moveable and real property;
iii. making certain legal statements in family law matters, namely:
a) legal statements concerning matrimonial property rights or property rights related to a registered partnership,
b) making statements in relation to the establishment of parentage,
c) defining the name of one's child and its alteration,
d) giving consent to the adoption of one's child;
iv. taking pecuniary decisions in relation to maintenance obligations;
v. making legal statements in relation to residential leases (conclusion and termination of the contract);
vi. inheritance matters;
vii. legal statements concerning placement in an social institution;
viii. disposing of rights related to health services;
ix. determination of place of residence
(1) Persons whom the court has placed in a guardianship precluding legal competency shall also be considered legally incompetent.
(4) Persons of legal age whose necessary discretionary ability for conducting their affairs is - owing to their mental state or unsound mind - completely and permanently absent shall be placed by a court in a guardianship that limits their competency.
Section 17 further stipulates that people who are completely lacking the mental ability to conduct their affairs shall be considered legally incompetent even if they have not been placed in the custody of a guardian.
Proxy decision making
Conditions for the appointment of a guardian
Sections 14 and 15 Hungarian Civil Code of 1959 describe the conditions for determining incapacity which are also those for the appointment of a guardian.
How guardianship is arranged
Once a court has determined diminished capacity and legal incompetency and decided that a guardian should be appointed, an administrative agency known as the guardianship authority appoints a guardian.
The choice of guardian
With regard to the appointment of guardians, preference shall be given to the person named by the person under guardianship, either when s/he was legally competent or following the court’s decision. If this is not possible or such a person does not exist the spouse/registered partner living in the same household shall be appointed. If such a person does not exist, a different appropriate person shall be appointed.
Preference is usually given to relatives. If it is not possible to appoint the guardian in any of these ways, a career guardian shall be appointed.
The guardian must be of legal age and legally competent. The person who has been appointed guardian must accept the office for the appointment to be valid.
A person cannot be appointed as a guardian if this would represent a conflict of interests with the person under guardianship. This applies to relatives and spouses as well. A person cannot be appointed as guardian if the person under guardianship has expressly objected to this.
The duties and responsibilities of the guardian
The guardian is the trustee and legal representative of the person under guardianship, either generally, or concerning certain affairs stated in the court’s decision, which might in certain cases extend to the provision of care (i.e. if the guardian takes on such responsibility).
How the financial affairs of the ward are handled
Guardians shall manage the affairs of the person under guardianship to the best of their ability. They should take into consideration requests of the person under guardianship and satisfy them if appropriate and depending on the funds available.
If the guardian is a close relative of the person under guardianship and his/her financial situation would not normally require accounting, the guardianship authority shall authorize simplified accounting.
With the exception of career guardians, an annual statement of accounts is not required if the person under guardianship has no assets, and if the monthly amount of his/her income from employment, pension or other benefits is below the limit specified in a separate legal regulation.
Measure to protect the person under guardianship from misuse of power
The guardianship authority oversees the activities of the guardian; the guardian is obliged to report on his/her activity and the condition of the person under guardianship at least yearly, or at any time on the request of the authority.
Article 16 of the Civil Code defines those cases in which the approval of the guardianship authority is needed for an effective/valid decision by the guardian.
Every year, the guardian shall submit a report to the guardianship authority on the financial affairs of the person under guardianship. The guardian may be excused from this obligation under special circumstances.
On the request of the person under guardianship, the authority may oblige the guardian to submit an ad hoc report in addition to the annual report.
Payment and liability of guardians
The guardianship authority shall remove the guardian from office, preceded by suspension in cases for which prompt action is required, if the guardian fails to fulfil his/her obligations or if s/he engages in conduct by which to cause serious injury to or endanger the interests of the person under guardianship.
The career guardians are employees of the local municipality and they receive their salary from it. The amount of the salary varies from one municipality to the next. Non-career guardians do not receive any salary or similar payment. However, the social benefits of the person under guardianship are delivered into their hands.
Duration of guardianship
The court shall periodically review its decision. The original decision of the court shall stipulate the exact date of the statutory review which cannot be later than 5 years from the court’s decision coming into force.
The court shall review its decision on the request of people and authorities mentioned in Article 21 of the Civil Code, which also includes the person under guardianship.
As a result of the statutory review the decision on guardianship can be altered or the guardianship terminated.
Guardianship comes to an end upon the death of the person under guardianship which can sometimes be problematic (e.g. in cases where the person under guardianship is in residential care and has no relatives).
The right to appeal
The person under guardianship can appeal against the decision of the court and request a review of the decision.
Recent developments in legislation related to guardianship
The new Civil Code was adopted by the Parliament on 9 November 2009 after the political veto of László Sólyom, the President of Hungary. The new rules on legal competency would have come into force on 1 May, 2010. During the adoption process many concerns were raised by political and professional stakeholders but on the whole, such concerns were not about the rules of legal competency. This new regulation contained crucial amendments based on human rights, such as abolishing complete guardianship and introducing supported decision-making and advanced directives. These rules would have made it possible to find tailored solutions for everyone, whilst diminishing their legal competency to the least possible extent. The cornerstones of the new regulation were in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Hungary ratified in July 2007.
However, despite the campaign by concerned NGOs, the new government of Hungary decided that the new Civil Code would not come into force. Moreover, new committees are working on a completely new Civil Code. The deadline for elaborating the new text of the codex is 30 September 2011. There is no news about the planned date of adoption or effectiveness of the Civil Code. Non-governmental organizations are concerned as neither the Government nor the members of the committees expressed their views on the guardianship. NGOs are concerned that the rights of people under guardianship will remain at risk in the coming years.
Capacity in specific domains
Marriage and divorce
Part 1 of the Hungarian Family Act of 1952 deals with marriage. A person who has been placed under guardianship on the grounds of legal incompetency is not considered as having the capacity to marry (§8). A marriage can be annulled by a court on the grounds that one of the spouses did not have sufficient capacity at the time of the marriage (§§7-12). Guardianship for people with diminished capacity affects the capacity to marry as the decision of the court limits legal capacity in that domain, making it necessary to obtain the approval of the guardian.
According to article 70 of the Constitution, all adult Hungarian citizens residing in Hungary have the right to be elected and to vote in parliamentary elections, local government elections or minority self-government elections. This right does not extend to people who are under guardianship.
Article 2, paragraph 2 of Act No. XXXIV of 1989 on the Election of Members of Parliament excludes people who are under guardianship with partial or complete incapacity from voting in elections for Members of Parliament.
The Mental Disability Advocacy Center (MDAC) recently won a case at the European Court of Human Rights in which the court stated that this absolute bar constitutes a violation of Article 3 of Protocol No. 1 to the European Human Rights Convention: http://mdac.info/en/european-court-human-rights-upholds-right-vote-per
People with diminished capacity have the right:
- to conclude contracts of minor importance aimed at satisfying their everyday needs,
- to dispose of 50% of their earnings acquired through work or social benefits,
- to assume obligations up to the extent of their earnings
- to conclude contracts that only offer advantages,
- to make legal statements of a personal nature for which they are authorized by legal regulation (Section 14 of the Civil Code).
According to section 18 of the Civil Code, legal statements made by legally incompetent people are considered null and void but legal representatives may act on behalf of incompetent people. Contracts of minor importance which do not require any special consideration can nevertheless be made by incompetent people and are not considered null and void.
Section 18 further stipulates that legal statements made by legally incompetent people who are not under guardianship are not considered null and void provided that, on the basis of the content and circumstances of the statement, it could be concluded that it would also have been justified had the person been legally competent.
It is possible to allocate a certain amount from the assets of the person under guardianship (on request and with the approval of the guardianship authority) to a descendant for the subsistence costs of the descendant provided that this does not exceed the compulsory share of inheritance of the descendant (Article 16 paragraph 2 of the Civil Code).
People with diminished capacity shall only be entitled to make public wills. Neither the consent of their legal representatives, nor the approval of a guardian shall be required for the public wills of such people to be valid. A public will can be drafted before a notary public or a court. Public wills cannot be validly drafted before a person who is a relative, guardian or conservator of the testator or the testator's spouse. Any bequest in favour of a person participating in the drafting of a public will or the relative, guardian, conservator or ward of such person shall be null and void.
People considered as legally incompetent do not have the capacity to make a will.
Section16/A. of the Civil Code states that people who mislead others regarding their legal competence shall be held responsible for their acts. Section 347 addresses the issue of liability for damage caused by people with deficient or no mental capacity. It states:
- A person with deficient or no mental capacity shall not be held liable for his/her actions. Liability for his/her actions shall be borne by his/her guardian, unless s/he is able to prove that, in the interest of performing his/her guardianship, s/he has acted in a manner that can generally be expected in the particular situation.
- If a person causing damage has no guardian or the liability of the guardian cannot be established, under special circumstances the person causing the damage can be ordered to provide total or partial compensation if it is clearly warranted by the circumstances of the case and the financial conditions of the parties.
- A person causing damage may not allege his/her mental incapacity or impairment if such condition was inflicted by the person him/herself.
With regard to criminal responsibility, section 22 of Act IV on the Criminal Code cites an “insane mental state” as grounds for the preclusion of punishability for a criminal offence.
Section 24 of Act IV on the Criminal Code states:
- That person shall not be punishable, who perpetrates an act in such an insane state of mental functions – thus in particular lunacy, imbecility, dementia, cognitive or personality disorder, - which makes him/her unable to recognise the consequences of the act or to act in accordance with this recognition.
- The punishment may be mitigated without limitation if the insane state of mental function hinders the perpetrator in the recognition of the consequences of the act or in acting in accordance with this recognition.
Last Updated: Tuesday 27 March 2012