Mental disorder, the presence of a serious illness, alcoholism and drug addiction, and in some cases the onset of old age, entail the patient’s inability to account for and manage his actions. In such cases, the only way out of the situation is to know how to recognize a person as incompetent and arrange guardianship over him.
The life of such a person turns into a heavy burden for his family and friends, who are forced to constantly worry about his health and property, but cannot help him without official paperwork. If you want to figure out for yourself how to recognize a person as incompetent or limit their legal capacity, carefully read this article.
How to recognize a person as incompetent, where to start and how to arrange guardianship quickly and without unnecessary red tape,
is told by a practicing lawyer, head of the legal consultation “Yur-Expert” Elena Vladimirovna Zelenina
If your issue requires a prompt solution or you want to entrust your case to professionals, contact lawyers specializing in court cases to declare a person incompetent or partially capable.
What is incapacity in simple words?
What incapacity is is specified in detail in Article 29 of the Civil Code of the Russian Federation. The law defines incapacity as a person being in a state in which he cannot understand the meaning of his actions and direct them. Incapacity occurs for various reasons. As a result of mental illness or age-related mental changes, after a serious illness, such as a stroke. But regardless of the reasons for its occurrence, signs of incapacity are manifested in the fact that a person cannot control his actions and understand their meaning.
So, if a person cannot take care of himself, make purchases and manage money, objectively assess the surrounding environment and situation, loses memory, and through his actions can cause harm to himself or others, he may be declared incompetent in full. Guardianship is established over him. The law also provides for the possibility of partial limitation of legal capacity.
If a person, as a result of a mental disorder, can understand the meaning of his actions or direct them, but only with the help of other persons, he may be limited by the court in his legal capacity. Guardianship is established over him (Article 30 of the Civil Code of the Russian Federation).
Such a citizen independently carries out only small everyday transactions and, with the consent of the trustee, can dispose of the alimony, pension, and other payments received for his maintenance. To carry out larger transactions, a person with limited legal capacity must have the written consent of the trustee. However, a citizen with limited legal capacity is independently responsible for the harm caused to him.
Attention!
Only a court can recognize a person as incompetent or partially capable after conducting a psychiatric examination.
Grounds for declaring a citizen incompetent
Incapacity should be understood as a state in which a person cannot be aware of the consequences of his actions, or realistically assess the circumstances and environment. Most often, incapacity occurs due to mental illness, less often – neurological, which affects parts of the brain.
Expert commentary
Platonov Alexander
Lawyer
It is impossible to call a person incompetent just because he is being treated in a psychiatric institution and has an appropriate diagnosis. To establish incapacity, a court decision is required, drawn up on the basis of a forensic medical examination and certificates submitted by the plaintiff.
What are the criteria for incapacity?
| Medical | Legal |
| The presence of a mental disorder that affects intellectual abilities in terms of understanding the meaning of one’s actions, as well as volitional abilities - managing one’s actions | The inability to comprehend one’s actions, as a result of which a citizen cannot make transactions while being of sound mind |
When considering an application, the court will examine a combination of several factors:
- Presence of a disease (disorder). If it is not recorded by a medical institution and not confirmed by a forensic examination, the claims will not be satisfied.
- The inability of a citizen to understand and direct his actions.
- Facts confirming that a citizen is not able to answer for himself and direct his actions. This could be medical certificates, witness statements, etc.
- Age. According to the law, there is no age for determining incapacity, but people over 75-80 years of age are most susceptible to various disorders. This will also be indirectly taken into account by the court, but does not affect the final decision. For the latter, evidence in the form of documents is needed.
For some persons, limited legal capacity is established.
For example, if a person suffers from alcoholism or drug addiction, or gambles, without a documented mental illness it is impossible to completely deprive him of his legal capacity, it can only be limited. Persons with limited legal capacity can carry out small transactions independently. In other cases, a trustee acts for them. Establishing limited legal capacity or incapacity allows you to avoid problems such as making transactions with property that are unfavorable for a citizen and other operations, as a result of which he may lose his home or a large sum of money. Also, as a result of this procedure, guardians and trustees are appointed who are entitled to a number of government benefits and payments.
The procedure for declaring a person incompetent in 5 steps. Instructions for independent use.
A person can only be declared legally incompetent through a court procedure. However, before starting the trial, you need to check whether you have the right to file such an application in court, whether you have enough documents to submit the application, and what the prospects for the case being heard in court are.
Step 1. We check your right to apply to court to declare a person incompetent.
Attention!
The law limits the circle of persons who have the right to apply to the court to declare a person incompetent.
An application to recognize a person as incompetent can be submitted to the court only by family members or close relatives of the incapacitated person (parents, children, brothers, sisters), regardless of whether they live together with him (Article 281 of the Civil Procedure Code of the Russian Federation).
And if there are none or they do not show initiative, then the following may apply to the court in the interests of the incompetent:
- guardianship and trusteeship authorities at the place of residence (registration) of the incapacitated person;
- medical institution (psychiatric hospital) in which the incapacitated person is being treated;
- social institution (nursing home, boarding school, etc.) in which the incapacitated person is located.
If you are not a family member or relative of an incompetent person, then you do not have the right to apply to the court to declare the person incompetent. The judge refuses to consider the application if it is filed by a person who does not have the right to do so.
In this case, you need to contact the guardianship and trusteeship authorities at the place of residence of the incompetent person or the medical institution at the location of the incompetent person and ask the heads of these institutions, on their own behalf, to apply to the court for recognition as incompetent.
Attention!
A person’s lack of the right to go to court does not deprive him of the right to become a guardian after the court recognizes the person as incompetent at the request of the guardianship authorities or a medical institution.
If you are part of the circle of people who have the right to go to court, then the next step is to check the documents required to file the application.
Step 2. We check the availability of documents necessary to apply to the court to declare a person incompetent.
In order to apply to the court to declare a relative or family member incompetent, you must have documents in your hands confirming your relationship with him. Such documents may be a birth certificate for children or parents, a marriage certificate for a spouse. In the case of a more distant relationship, the entire chain of family ties must be confirmed to the court.
If your last name differs from the last name indicated on the certificates, be sure to confirm the change of last name with a document.
Before going to court, you need to find out in which medical institutions your relative has been observed and registered recently, and, if possible, collect available medical documents (certificates, discharge summaries).
The collection of medical documents is complicated by the fact that they are not issued by medical institutions to third parties by law.
Attention!
If the incapacitated person does not have medical documents on hand, it is enough for the court to indicate in which medical institutions he was observed and registered. The judge will independently make a request and request the necessary medical documentation.
If you have the documents necessary to go to court, then in order to begin the legal process you need to prepare an application.
Step 3. We draw up an application for recognition as incompetent.
An application to declare a person incompetent must be in writing and must comply with the requirements of the law.
The application must indicate whether the citizen has a mental disorder and arguments about why he cannot understand the meaning of his actions or control them (Article 282 of the Civil Procedure Code of the Russian Federation).
It is advisable to indicate in the application the medical diagnosis of the incapacitated person or signs of his mental illness that are manifested in behavior. For example, he does not recognize his relatives, regularly forgets to turn off the gas, goes out in clothes that are out of season, does not realize the value of money, does not understand the meaning of documents and actions, and is aggressive towards others.
The statement must clearly indicate how the person’s incapacity manifests itself and why he cannot make decisions independently.
The application must indicate the medical institutions in which the incapacitated person was treated, registered, observed, and where his medical diagnoses or signs of mental disorder could be recorded.
Also, the application must indicate the degree of relationship between the applicant and the incapacitated person.
Sample application for declaring a person incompetent.
If you decide to draw up an application for recognition of incapacity yourself, then you need to fill it out correctly.
The applicant must be the person who applies to the court with a request to declare a relative or family member incompetent.
The person interested in the case must indicate the person recognized as incompetent.
Also interested parties in the case will be:
- guardianship and trusteeship authorities at the place of registration of the incapacitated person;
- medical (social) institution in which a person incapacitated at the time of going to court is undergoing treatment.
The following documents must be attached to the application submitted to the court:
- copies of medical documents confirming the presence of mental illness in a person declared incompetent;
- copies of documents confirming the relationship between the applicant and the incapacitated person;
- documents confirming the place of residence (registration) of the incapacitated person (extract from the house register, copy of the passport);
- other documents related to the case.
If the applicant does not have medical documents of the incapacitated person, it is sufficient to indicate in the application the medical institutions from which the court can request them.
If there are no documents confirming the place of registration of the incapacitated person, the court must indicate the exact address of his place of residence.
The application can be accompanied by evidence of the incapacitated person’s painful condition, for example, photographs, statements to the police regarding the incapacitated person’s behavior, etc.
Preparing an application for recognition of incapacity online.
Order
After the application is drawn up, we file a claim in court.
Step 4. Submitting an application for recognition of incompetence to the court.
The procedure for filing an application for recognition as incompetent to the court is provided for in Article 281 of the Civil Procedure Code of the Russian Federation.
We select the court to which the application is filed. If the incompetent person is at home at the time of filing the application to the court, then the application is submitted to the district court at the place of residence (registration) of the incompetent person.
If at the time of applying to the court the incompetent person is in a medical or social institution, then the application is submitted to the district court at the location of this institution.
The application for recognition as incompetent and the documents attached to the application are submitted to the court in at least 4 copies (for the court, for sending to the incompetent person, for the guardianship and trusteeship authorities, for the prosecutor). And if the incapacitated person is in a medical (social) institution, then in 5 copies (another copy for sending to the appropriate institution).
Only copies of documents are submitted to the court; the originals remain with the applicant and are presented to the judge for review at the court hearing.
An application with a set of documents is submitted to the court in person or sent by mail to the court’s address with a list of the contents and a notification of delivery.
When submitting documents to the court in person, on one copy of the application it is necessary to obtain a mark (incoming stamp) from the court about the acceptance of documents by the court; a copy with a mark from the court regarding the acceptance of documents is kept by the applicant.
Attention!
One copy of the application for recognition as incompetent and the original documents remain with the applicant.
After the claim is received by the court, in accordance with the rules of document flow established in the court, the application is registered in the electronic database of the court, the case is assigned a number and the materials are transferred to the judge for review. After studying the materials, the judge can either set a date for the court hearing (if all documents are prepared correctly) or leave the application without progress, as well as return the application if errors were made when filing the application.
If the court decides to set a date for trial, the applicant is sent a summons.
Attention!
In cases of recognition of incompetence, information about the case (about the receipt of the case in court, about the registration number of the case, about the judge to whom the case was transferred for consideration and about the date of the court hearing on the claim set by the court) is not posted on the court’s website for public viewing.
I recommend that after the expiration of 5 working days from the date of filing the application with the court, you personally contact the court to obtain information about the progress in the case.
Step 5. Trial. Forensic psychiatric examination. Obtaining a court decision declaring incompetent.
An application to declare a person incompetent is considered by the court according to the general rules of judicial proceedings, but with some peculiarities. You can familiarize yourself with the general procedure for considering a case in court in our article, indicate the title of the article.
Now we will look at the features of the trial to declare a person incompetent.
Attention!
Consideration of an application to declare a person incompetent consists of two stages: a preliminary court hearing and the main court hearing.
The court considers an application to recognize a citizen as incompetent with the mandatory participation of the applicant, the prosecutor, a representative of the guardianship and trusteeship authority, and the incompetent person himself.
During the consideration of the case, the applicant substantiates his application to the court, indicates the reasons why he considers it necessary to recognize his family member or relative as incompetent.
The guardianship and trusteeship authorities and the prosecutor participating in the case give their opinion on whether they support the application for declaring a person incompetent, whether this is in his interests, or whether they object to such recognition.
An incompetent citizen is invited to a court hearing if his personal presence in court does not create a danger to his life or health or to the life or health of others. He has the right to give explanations on the case, express his attitude to the statement, and justify the reasons for his behavior.
If a citizen’s personal participation in a court hearing is impossible, the law allows for a mobile court hearing, in which the judge goes to a medical or social institution at the location of the incapacitated person to question him.
When considering the case, the judge takes into account medical documents from the hospital, clinic, psychoneurological dispensary and other institutions about the past and current mental state of the person, testimony of witnesses, and other evidence indicating that the person cannot account for and control his actions.
At the preliminary court hearing, the judge, having examined the application, the documents attached to it, having listened to the applicant, the person recognized as incompetent, the position of the guardianship and trusteeship authorities, as well as the prosecutor, determines whether there is enough data indicating a mental disorder of the citizen or not. The judge also decides to request additional medical documentation if it is not sufficient for the case.
If sufficient data is provided indicating a citizen’s mental disorder, the court orders a forensic psychiatric examination in the case. The examination can be carried out either on an outpatient or inpatient basis, depending on the condition of the person recognized as incompetent, his location and the specific circumstances of the case.
If the court has ordered a psychiatric examination on an outpatient basis, and the incompetent person refuses to undergo it, the court may issue a ruling on the forced referral of the citizen for a forensic psychiatric examination (Article 283 of the Code of Civil Procedure of the Russian Federation).
After a forensic psychiatric examination has been carried out and experts have prepared a conclusion on the case, it is sent to the court.
The judge, having received the results of the forensic psychiatric examination, schedules the main court hearing, in which, taking into account the results of the examination, he studies the case materials, hears the participants in the process and makes a decision on whether to grant the application and declare the person incompetent or to refuse the application.
Remember!
The law exempts the applicant from paying state fees and from paying for a forensic psychiatric examination (Article 284 of the Code of Civil Procedure of the Russian Federation).
However, if the court, when considering the case, establishes that the applicant acted in bad faith for the purpose of knowingly unjustified deprivation of legal capacity of a citizen, then all costs associated with the consideration of the case will be recovered from the applicant.
The period for consideration in court of a case declaring a person incompetent takes approximately two to six months and depends on the duration of the examination, the workload of the court considering the case, as well as on the correct preparation of the application, the documents attached to it and the position chosen by the applicant.
Within 30 days after the court makes a decision declaring him incompetent, it enters into legal force and is the basis for the registration of guardianship.
Preparation of a set of documents for recognition as incompetent and representation by a lawyer of your interests in court and in expert institutions in Moscow and the Moscow region.
Order
If a person declared incompetent does not agree with a court decision, he has the right to appeal the decision to a higher court within 30 days from the date of its adoption.
Also, the applicant, the guardianship and trusteeship authorities, and the prosecutor have the right to file an appeal against the court decision if they believe that the court decision violates the rights and legitimate interests of the person in respect of whom the case was considered.
Requirements for a guardian, procedure for appointment as a guardian.
According to Part 2 of Article 285 of the Civil Procedure Code of the Russian Federation, a court decision by which a citizen is declared incompetent is the basis for the guardianship and trusteeship authorities to appoint a guardian for him. Similar provisions are enshrined in Article 32 of the Civil Code of the Russian Federation.
Guardianship is formalized by the guardianship and trusteeship authority within a month from the date of the court decision.
If a guardian is not appointed within a month, the duties of the guardian are assigned to the guardianship and trusteeship body.
To formalize guardianship over an incompetent person, it is necessary to apply for the establishment of guardianship to the guardianship and trusteeship authority at the place of residence of the incapacitated person and provide a court decision declaring the ward incompetent.
The guardianship and trusteeship authorities review the application, check the compliance of the person who has expressed a desire to become a guardian with the requirements of the law, and then make a decision to appoint a guardian or to refuse the appointment, for which they submit a reasoned resolution.
Attention!
A guardian can be appointed only with his consent. If you do not agree to formalize guardianship over an incapacitated relative, the guardianship and trusteeship authorities do not have the right to demand this.
When registering guardianship, the moral and other personal qualities of the guardian, the ability to perform the duties of a guardian, the relationship existing between him and the person in need of guardianship, and, if possible, the desire of the ward (Part 3 of Article 35 of the Civil Code of the Russian Federation) are taken into account.
Only adult citizens can be appointed as guardians and trustees.
Citizens deprived of parental rights, as well as citizens who, at the time guardianship was established, had a criminal record for an intentional crime against the life or health of citizens (Part 2 of Article 35 of the Civil Code of the Russian Federation) cannot be appointed guardians.
As a rule, family members or close relatives of the incompetent person become guardians of persons recognized by the court as incompetent. However, the law does not exclude the possibility of appointing as a guardian other persons who have expressed their desire to become a guardian.
Incapacitated citizens placed under the supervision of medical organizations (psychiatric hospitals), organizations providing social services (homes for the elderly and disabled, boarding schools) or other organizations are not assigned guardians. The fulfillment of the duties of guardians is assigned to these organizations (Part 4 of Article 35 of the Civil Code of the Russian Federation).
If several persons wish to become a guardian of an incapacitated person, the guardianship and trusteeship authorities, when choosing a guardian, proceed from the interests of the ward and give preference to persons who are more closely related to the ward. Other significant circumstances are also taken into account, for example, the possibility of providing adequate care, round-the-clock supervision, affection of the person under guardianship, etc.
Rights and responsibilities of a guardian. Disposal of income and property of an incapacitated person.
A person deprived of legal capacity by a court does not have the right to make transactions and is not responsible for obligations; he does not have the right to dispose of his money and property, perform legally significant actions, etc. All transactions on behalf of an incapacitated citizen are carried out by his guardian (Article 285 of the Code of Civil Procedure of the Russian Federation).
Current legislation provides for guardians more responsibilities than rights. We list the main responsibilities and rights of a guardian.
Guardians are required to live together with their wards. Separate living with a ward is allowed only with the permission of the guardianship and trusteeship authority, provided that this does not violate the rights and interests of the ward. Guardians are required to:
- notify the guardianship and trusteeship authorities of a change in your place of residence and the place of residence of the ward;
- take care of the maintenance of their wards, engage in their care and treatment, protect their rights and interests before third parties;
- takes care of restoring the ward’s ability to understand the meaning of his actions;
- perform their functions, taking into account the opinion of the ward, if this is possible due to his state of health.
Guardianship responsibilities are performed by the guardian free of charge, except in cases provided for by law (Article 36 of the Civil Code of the Russian Federation).
The guardian manages the income of the ward, exclusively in the interests of the ward and with the prior permission of the guardianship and trusteeship authority.
Amounts of alimony, pensions, benefits, as well as other funds paid for the maintenance of the ward, are subject to credit to a separate account and are spent by the guardian without the prior permission of the guardianship and trusteeship authority. For example, this could be the cost of purchasing medicine, food, or clothing for the person under care. But the guardian submits to the guardianship authority a report on the expenditure of these amounts.
Spending large sums of money belonging to the ward, making transactions for the alienation, including exchange or donation of the ward’s property, renting it out, for free use or as collateral, as well as performing any other actions that entail a decrease in the ward’s property is possible only with the prior permission of the guardianship and trusteeship authority.
The procedure for managing the property of a ward is determined in more detail by the Federal Law “On Guardianship and Trusteeship”.
The guardianship and trusteeship authority at the place of residence of the incompetent person supervises the activities of their guardians.
How to recognize a person as incompetent due to old age.
An elderly person is a person who has reached the age of 60 years or more.
In the case of an elderly person, it is necessary to understand whether the person is incapacitated or has a mental illness in which he is not fully aware of his actions and cannot control them. Or he is partially incompetent, has a mental illness, but at the same time he can understand the meaning of his actions and manage them with the help of other persons.
In such cases, it is necessary to apply to the court with a request to recognize the elderly person as incompetent or partially capable in accordance with the general procedure established by law for recognizing a person with a mental illness as incompetent. See the procedure for declaring a person incompetent in 5 steps.
However, if an elderly person does not have mental illness, but due to his age cannot take care of himself and needs outside help, care and attention, the law allows guardianship over the elderly person without declaring him incompetent and without a trial.
In this case, an elderly person has the right to personally contact the guardianship and trusteeship authority at his place of residence with an application to establish guardianship over him and ask to appoint a guardian for him to provide constant care for him and protect his interests.
At the same time, an elderly person has the right to ask to appoint as his guardian a specific person who has agreed to become his guardian or any person appointed by the guardianship and trusteeship authorities at their discretion.
How does the procedure for declaring an elderly person incompetent work?
Will an elderly person with dementia be declared incompetent by the court, what facts influence this decision? When making a decision, the judicial authority is based on a number of facts:
- the pensioner has a mental disorder;
- the ability for them to realize awareness of their actions, actions, and bear responsibility for them;
- the presence of circumstances that confirm the inadequacy of the citizen;
- reaching old age.
To confirm these facts, the applicant must provide the following evidence:
- a certificate stating that the pensioner is registered at a mental health clinic or has undergone treatment there;
- medical examination report;
- extracts from the medical record;
- testimony of witnesses that the person is able to do without the help of strangers.
How to recognize an elderly person as incompetent due to old age? Such a procedure is enshrined in civil law and must be carried out exclusively by a judicial authority. During court proceedings, the determination is made on the basis of medical as well as legal opinions.
Let's look at this process in more detail:
- The applicant must ensure that the application is submitted to the judicial authority, which is located at the place of residence of the pensioner.
- After examining the evidence, the judge offers a medical examination to an adult; if he refuses it, the procedure will be carried out forcibly.
- Based on the results of the examination, the court of the Russian Federation issues a verdict on the person’s legal capacity.
Also, many relatives are interested in the question of whether it is possible to deprive a drug addict or alcoholic of his legal capacity. If a citizen puts himself (his relatives) in a difficult financial situation due to drug or alcohol abuse, the judicial authority may deprive him of partial legal capacity.
After this, guardianship will be established over the individual, however, the citizen has the right to receive income himself and carry out small financial transactions, dispose of all funds received; these actions can only be performed with the consent of the guardian. Despite partial incapacity, a person is responsible for the property and any damage caused by it.
Also, a person who abuses alcohol or drugs can have their rights partially limited, but for this it is necessary to present strong evidence to the court.
How to recognize a person as incompetent due to a disease after a stroke.
If a person has serious illnesses that prevent him from caring for himself and protecting his interests, but there are no mental illnesses, the law allows the registration of guardianship without declaring him incompetent and without a trial.
However, to obtain guardianship, the following conditions must be met:
- presence of disability of the 1st group;
- presence of medical indications, previous illness (stroke, etc.);
- need for constant outside care.
To register guardianship, you must contact the guardianship and trusteeship authority at the place of residence of the ward with an application for the establishment of guardianship and ask to appoint a guardian to provide constant care for the ward and protect his interests.
The guardian in this case can be any person elected by the ward or appointed by the guardianship and trusteeship body.
Who can declare
Recognition of an elderly person as incompetent is carried out on the basis of an application that can be submitted by the following categories of persons:
- legal spouses or relatives who live together with an incapacitated citizen;
- parents, if they are not incapacitated;
- adult children of a citizen;
- representatives of social services;
- medical workers who serve a pensioner;
- employee related to guardianship and trusteeship.
Note! Both individuals and legal entities can submit an application to deprive an elderly person of legal capacity.
Limitation of legal capacity of alcoholics, drug addicts, and gamblers.
For persons who do not suffer from mental illness, but who, as a result of addiction to gambling, alcohol or drug abuse, put their family in a difficult financial situation, the law provides for the possibility of limiting their legal capacity in court.
The procedure for filing an application for limitation of legal capacity in court and the procedure for considering the case in court is similar to the procedure for declaring a person incapable.
See the procedure for declaring a person incompetent in 5 steps.
However, restrictions on legal capacity have their own characteristics, which we will now consider.
A family member of the specified person has the right to apply to the court to limit legal capacity.
Attention!
The applicant must confirm his relationship with the person in respect of whom the application for limitation of legal capacity is being submitted. Documents confirming relationship can be a marriage certificate for a spouse, a birth certificate for parents and children.
An application for limitation of legal capacity is submitted to the district court at the place of residence (registration) of the person recognized as having limited legal capacity.
The application for limitation of legal capacity shall be accompanied by documents confirming the relationship with the applicant, as well as evidence confirming the abuse of alcoholic beverages or drugs, or addiction to gambling.
Evidence of alcohol and drug abuse may include certificates from neuropsychiatric and narcological clinics, extracts from the medical history, various medical documents, and witness testimony.
Evidence of gambling addiction can be provided by an expert’s opinion or witness testimony.
Attention!
Along with the fact that a person has a psychological dependence on alcohol, drugs or gambling, the applicant must prove to the court that this dependence puts the family in a difficult financial situation.
The court must see that there is a loss of control, entailing an unreasonable waste of money that should have been used to support family members.
If the court makes a decision to limit the abusive person’s legal capacity, the person with limited legal capacity will have the right to carry out only small everyday transactions. For example, purchasing food and small household items.
A person with limited legal capacity has the right to spend wages, benefits, pensions, large amounts of money, as well as make large transactions only with the consent of the guardian. (Article 30 of the Civil Code of the Russian Federation).
What is the difference between incapacity and insanity?
Before moving on to consider all the nuances of the process of depriving an old person of legal capacity, you should understand what this concept means. Most people may confuse it with insanity. The first thing a citizen who decides to go to court with this problem needs to know is that this procedure does not require special legal knowledge from the applicant.
The main circumstance under which an individual can be deprived of legal capacity or declared insane is the general condition - the presence of a mental illness. Insanity is related to criminal law; it is determined by a specific act, which indicates a loss of control by an individual over his actions. Deprivation of legal capacity is recognized in general, and not in relation to any act.
Restoration of capacity.
If the incompetent person has regained the ability to understand the meaning of his actions and direct them, he can be restored to legal capacity (Articles 29 and 36 of the Civil Procedure Code of the Russian Federation and Article 286 of the Civil Procedure Code of the Russian Federation).
Restoration of legal capacity is carried out by the court on the basis of an application submitted by a guardian, a family member of the incapacitated person, or a medical or social organization at the location of the incompetent person.
When considering an application for restoration of legal capacity, the court orders a forensic psychiatric examination in the case, based on the results of which it assesses the person’s current condition. A positive conclusion of a forensic psychiatric examination is the basis for restoration of legal capacity. Based on the results of the trial, the court makes a decision either to refuse the application or to recognize the person as legally competent.
Based on a court decision recognizing the person as capable, the guardianship and trusteeship authorities cancel the guardianship.
Elena Vladimirovna Zelenina is a practicing lawyer, honorably retired judge, head of the legal consultation “Yur-Expert”, more than 20 years of experience in declaring citizens incompetent and limiting their legal capacity, more than 1,000 successfully completed cases in Moscow, the Moscow region and in the regions.
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The cost of services of a professional trial lawyer in cases of recognizing a person as incompetent or partially capable:
| Detailed legal advice with written recommendations for going to court | for free |
| Collection of documents for applying to the court with a statement on how to recognize a person as incompetent or partially capable | from 5,000 rubles |
| Preparation of an application to the court on how to recognize a person as incompetent or partially capable with written recommendations for going to court | from 3,000 rubles |
Preparation of documents for court:
Formation of a complete set of documents for filing with the court with individual written recommendations on the case | from 5,000 rubles |
| Preparation and submission to the court of a complete set of necessary documents on declaring a person incompetent or partially incompetent with individual written recommendations on the case | from 10,000 rubles |
| Representation of interests in court on declaring a person incompetent or partially incompetent at a preliminary court hearing (filing petitions, substantiating the application, ordering a forensic psychiatric examination, including compulsory) | from 15,000 rubles |
| Representation of interests in court on declaring a person incompetent or partially incompetent at the main court hearing (familiarization with the results of a forensic psychiatric examination, substantiation of the position) | from 15,000 rubles |
| Representation of interests in a medical institution during a forensic psychiatric examination, assistance with organizing the delivery of a person for examination | from 15,000 rubles |
| Representation of the interests of the applicant for recognition of a person as incompetent or partially incompetent on a turnkey basis, the entire scope of legal services from the stage of collecting and preparing documents to the issuance of a court decision | from 35,000 rubles |
| Representing the interests of a guardian in the guardianship and trusteeship authorities when registering guardianship over a person recognized as incompetent or partially incompetent | from 15,000 rubles |
| Representing the interests of the applicant when registering an incapacitated person in medical and social institutions, assistance in organizing the delivery of an incapacitated person to their further location | from 15,000 rubles |
A similar cost of legal services is established in cases of restoration of legal capacity and cancellation of guardianship.
Documents for recognition as incompetent
Before submitting an application to the judicial authority, you need to collect a list of necessary documents that are mandatory to activate such a case. Let's discuss what documents are needed to fully recognize an elderly person as incompetent:
- documents that confirm family relations with the pensioner (in the event that the claim was filed by immediate relatives);
- medical documents that confirm the citizen’s incapacity - extracts from a medical card, conclusions of specialized specialists and a therapist;
- a request for a forensic psychiatric examination to be performed;
- document confirming payment of state duty.
A certificate of manifestation of legal capacity is a document that confirms that an individual does not have mental or psychoneurological abnormalities; such a citizen can control his actions and be responsible for his decisions.
Note! A document from a psychoneurological hospital does not confirm that a person is incompetent. This document indicates whether the citizen is registered with this institution.
When submitting an application to the court, it is required to clearly indicate the circumstances that can confirm that the patient is inadequate and call into question his legal capacity.
The procedure for declaring an elderly person incompetent is regulated by Russian legislation and includes the following stages:
- collection of documentation;
- drawing up an application;
- payment of state duty;
- filing an application with the court.
If a court makes a decision to recognize a person who has reached retirement age as legally incompetent, then after a few days he will be transferred to the regional OPP. After a month, the citizen will be able to appoint a guardian.
