2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
According to article 357 of the Civil Law, “persons who are mentally deficient but, nonetheless, do not lack the intellectual capacity for management of ordinary matters, may administer their own property and deal with it freely.”
Article 358 further states that trusteeship shall be established for people who are mentally ill and have been recognised as lacking the capacity to act and to legally represent themselves. Mental illness or mental deficiency only has legal consequences when a person has been found by a court to be lacking the capacity to act due to that illness or deficiency (article 359).
Proxy decision making
Unfortunately, we were unable to obtain details about guardianship or continuing powers of attorney.
Capacity in specific domains
Marriage and divorce
Article 33 of the Civil Code states that people who have been found by a court to lack capacity to act due to mental illness or mental deficiency are prohibited from marrying. The marriage may be annulled if at the time of the marriage one of the spouses was declared as lacking capacity to act due to mental illness or mental deficiency, or was unable to understand the meaning of his or her actions or to control them (article 61).
The Electoral Register Law of 22 January 2004 (which came into force on 5 February 2004) covers the establishment of a voter registration system in the territory of the Republic of Latvia and the registration of people who have the right to vote in the Saeima (the Parliament of the Republic of Latvia), the European Parliament, city council, county council and parish council elections. To be eligible to vote, a person must have reached 18 years of age, be registered in the Population Register and have the capacity to act. According to section 15 of this law, it must be noted in the Population Register if a voter has been recognised as not having the capacity to act.
Capacity to work
Section 71 of the Medical Treatment Act of 1997 addresses the issue of capacity to work. It states that in cases of long-lasting or permanent limitation of physical or mental capabilities, an expert assessment of health and work capability is carried out and disability (invalidity) is determined by the state authorised Health and Work Capability Expertise Commission (HWCEC) whose operation is governed by the legislative acts.
According to articles 420 and 421 of the Civil Law, any person who has the capacity to act may make a will. A person with a mental illness is considered incapable of making a will.
Chapter 3 (Obligations and Claims arising from Wrongful Acts) of the Civil Law deals with “delicts ”. According to article 1637, “persons with the capacity to act shall not be liable for delicts, if they committed the delict while unconscious or in a state of mental incompetence.”
Chapter II of the Criminal Law addresses the issue of responsibility for criminal offences. The following sections are relevant to crimes committed by people with incapacity:
Section 8: Forms of Guilt
- Only a person who has committed a criminal offence deliberately (intentionally) or through negligence may be found guilty of it.
- In determining the form of guilt of a person who has committed a criminal offence, the mental state of the person in relation to the objective elements of the criminal offence must be established.
Section 13: Mental Incapacity
- A person who, during the time of the commission of the offence, was in a state of mental incapacity, that is, due to a mental disorder or mental disability was not able to understand his or her acts or control them, may not be held criminally liable.
- For a person who has been found to have a lack of mental capacity, the court shall order compulsory measures of a medical nature as set out in this Law.
Section 14: Diminished Mental Capacity
- If a person, at the time of the commission of a criminal offence, due to mental disorder or mental disability, was not able to understand his or her acts fully or control them, that is, was in a state of diminished mental capacity, the court may reduce the sentence to be adjudged or release such person from punishment, according to the actual circumstances of the offence.
- For a person who has been found to have diminished mental capacity, the court shall order compulsory measures of a medical nature as set out in this Law.
Sections 68 to 70 deal with the compulsory measures of a medical nature mentioned above. For people who are not considered dangerous to the public, a court may decide to place them with their relatives or other people who will then care for them under the supervision of a medical institution linked to their place of residence (section 68).
Section 69, on the other hand, states that people with mental incapacity who have committed a crime and who are considered dangerous to the public due to their mental state may be obliged to have treatment in a psychiatric hospital, and that this should be determined by a court. Section 70 deals with people who have committed a crime whilst in a state of diminished responsibility. In such cases, the person may be obliged to undergo treatment at an institution in their place of residence or elsewhere depending on whether they are also sentenced to deprivation of liberty.
Disturbance of public order
“If a person due to a mental disorder or mental disease disturbs public order, his or her detention, conveyance to and supervision at the psychiatrist’s shall be performed by police officers in accordance with the Law on the Police. The police officers shall submit to the psychiatrist a notice in writing of the anti-social nature of the behaviour of the patient.” (Section 69 of the Medical Treatment Law of 1997)
Last Updated: Wednesday 28 March 2012