2016: Decision making and legal capacity in dementia
Issues surrounding the loss of legal capacity
Mental capacity is described in article 5 of the Romanian Mental Health Law of 2002 as an individual’s capacity to make certain decisions and to perform certain acts and the ability to understand the nature and effects of one’s acts. On the basis of a medico-legal examination, a person may be declared incompetent or partially incompetent and subject to total or partial interdiction. Legal competence is defined in article 948 of the Romanian Civil Code (Tataru, 2008).
Proxy decision making
Conditions for the appointment of a guardian
According to article 142 of the Romanian Family Code, a person who does not have discernment to take care of his/her interests, due to mental alienation or mental retardation, shall be placed under interdiction. A guardian may be appointed for a person who has been declared totally or partially incompetent.
Law no. 448 of 18 December 2006 on the promotion of the protection of disabled people also stipulates that people with disabilities shall receive protection from neglect and abuse wherever they are located and that disabled people, regardless of their age, who are wholly or partly incapable of managing their personal property, shall benefit from legal protection in the form of trusteeship or guardianship and legal assistance (article 23, §§1 and 2).
Dementia and Alzheimer’s disease are legally defined as a disability in Romania. This is covered by Order no. 90 of 9 August 2002 which was issued by the Ministry of Health, State Secretariat for Disabled People and published in the Official Gazette no. 701 of 25 September 2002. However, according to the Romanian Alzheimer’s Society, the methodological norms have not yet been established, which means that so far this definition is mainly theoretical and does not translate into practice.
How guardianship is arranged
The person must be examined by a legal medical commission in order to establish a possible diagnosis of mental illness and to evaluate competency. If total or partial interdiction is declared, the City Hall decides whether to set up total or partial guardianship. Total guardianship (tutela) is covered by article 142 of the Romanian Family Code and partial guardianship (curatela) is covered by article 146 of the Romanian Family Code. Partial guardianship can also be arranged prior to establishing the actual guardianship measure.
Who can be a guardian
The choice of guardian is made by the guardianship authorities at the City Hall (which is the local administrative body). Section 6, §4 of Law no. 488 of 18 December 2006 states: If the disabled person has no relatives or people who accept guardianship, the court may appoint a guardian or the local government authority, as appropriate, and also the private legal entity that provides protection and care for the disabled person.
The duties and responsibilities of guardians
The parent, legal representative, guardian or non-governmental organisation, of which the disabled person is a member, can assist him/her in court and the proceedings linked to obtaining the disability rights to which the person is entitled under Law no. 448 of 2006 shall be made expeditiously (Law no. 448, section 6, §6-7).
The duties and responsibilities of the person or authority appointed as guardian depend on whether it is partial or total guardianship and this is determined by the guardianship authorities.
Measures to protect the ward from abuse
When a guardian is appointed, s/he is obliged to make an inventory of all the movable and immovable assets of the disabled person and to submit an annual report regarding the management of such assets to the guardianship authorities from the administrative territorial unit of the place where the disabled person resides (Law no. 448 of 2006, section 6, §3). These guardianship authorities also monitor whether the guardian is fulfilling his/her obligations (§5).
Duration of guardianship
Once the final decision for interdiction has been made, the guardianship measure continues for as long as the conditions which led to the interdiction remain.
Therefore, in the case of dementia, the decision concerning the guardianship measure remains valid until the person with dementia, the guardian or any other person named in article 115 of the Romanian Family Code requests termination of the interdiction (which would rarely, if ever, happen).
However, the guardian of a person who is under interdiction is entitled to request replacement after three years of duty (article 148 of the Romanian Family Code).
Also, if guardianship authorities consider after the annual monitoring that the guardian did not fulfil his/her duties properly, they can terminate the guardianship and change the guardian (a partial guardian can be named until a new permanent guardian is appointed). Otherwise, the guardianship remains permanent.
Capacity In Specific Domains
Marriage and annulment
According to article 9 of the Family Code (Law 4/1953) (issued in the Official Bulletin no. 13 of 18 April 1956 and modified and completed by Law 288 of 2007), it is forbidden for a person with a mental disorder, mental retardation or temporary lack of mental faculties with loss of discernment to marry.
Article 34 of the Romanian Constitution of 1991 states:
Every citizen having attained the age of eighteen by or on the election day shall have the right to vote.
Mentally deficient or alienated, placed under interdiction, as well as persons disenfranchised by a final decision of the court cannot vote.
Law no. 286/2009 on the Criminal Code published in the Official Gazette, Part 1, no. 510 of July 24, 2009 deals with the issue of criminal responsibility in the case of incapacity.
According to article 28: An act provided in the criminal law shall not be an offence if the perpetrator, at the time of perpetration, could not realise his/her actions or his/her omissions and cannot control them, either because of mental illness or other causes.
Last Updated: Thursday 09 February 2017