GUARDIANSHIP
Deprivation of business capacity is a court procedure in which it is established that a person is deprived of business capacity, that he is no longer capable of independently taking care of his rights, obligations and protecting his interests.
To understand this, it is first necessary to explain in more detail what is considered business capacity in law, when there is a need to initiate such a procedure, and what the court procedure for deprivation of business capacity looks like.
What is business capacity?
In jurisprudence, legal capacity is defined as the ability of a person to produce certain legal effects through declarations of his will. Translated into layman’s language, business capacity is the ability of a person to independently take care of all his rights, obligations and interests. In our law, business capacity is acquired from the age of eighteen, so in the broadest sense of the word, the expression that someone has become an adult could be equated with the legal expression that someone has become fully capable of business.
When someone becomes of legal age (that is, fully capable of doing business) there is an assumption that that person has reached the required level of maturity so that in the future he can make all important decisions about his life completely freely and independently, fulfil all his obligations, and conclude all types of contracts.
So, for example, an adult, i.e. a fully capable person, can freely and independently conclude a marriage, conclude any other contract (e.g. one that would involve the disposal of some kind of property of great value), vote, make decisions regarding their health, make decisions regarding their education, decide where they will live, etc. In addition, the acquisition of full business capacity also means that the person is fully capable of independently performing all the obligations that he would have taken upon himself (by concluding a contract).
Of course, as is always the case with law, there are exceptions to this “rule”, so the moment of acquiring business capacity will not always coincide with the moment of reaching adulthood. In other words, there are two cases when full business capacity is acquired before the age of 18.
- The first case is when a person, with the permission of the court, concludes a marriage before turning 18.
- Another case is when the court allows the acquisition of full business capacity to a person who has reached the age of 16, has become a parent, and the court has assessed that the person has reached the physical and mental maturity to really be able to take care of their own personality, rights and obligations independently.
IN WHICH CASES ARE THE PROCEEDINGS INITIATED FOR DEPRIVATION OF BUSINESS CAPACITY?
The need to initiate these procedures arises for many reasons.
Sometimes there are elderly people who are no longer physically or mentally able to take care of their rights and obligations. Therefore, there are many cases where adult children decide to initiate such a procedure in relation to one or both of their parents when they (in the first place, due to their age) can no longer take care of themselves. In such persons, most often, along with the years of life, some disease appears that affects the ability of memory, thinking, learning, communication and daily functioning of that person, which is why the initiation of this procedure is inevitable, and all to enable children to take care of their parents and make it easier.
To make this clearer, it should be borne in mind that such persons usually do not only need help in their daily functioning and the satisfaction of their hygienic and physiological needs. On the contrary, with this type of assistance, they often need assistance in withdrawing their pension, going to the post office/picking up parcels, taking care of property, communicating with the bank (when these persons have savings or current accounts in banks), signing or extending contracts for the provision of mobile telephony or cable television services, etc. Precisely because of all the above, such persons are almost daily faced with the real danger of being deceived or induced to do something or sign something to their detriment.
It often happens that these people are not aware that they need daily help in functioning and that it would be best for them to be under the supervision of professional staff in homes for the elderly, which they often refuse. In such situations, a rather absurd situation arises where the person is not aware that he needs help and refuses to receive that help, but he is still considered fully capable of making his own decisions about it. In such a state of affairs, a person whom the family wants to place in a home for the elderly will not be placed in a home if that person himself does not want it, because he will simply refuse to sign the contract on his placement in the home. No one else can sign such a contract on his behalf, until that person is deprived of business capacity.
Another frequent situation when children decide to “put their parents under guardianship” is when their parents own assets of greater value. Out of fear that their parents may be induced by a third party to enter a contract whereby the parent disposes of his property for the benefit of that third party, children often decide to protect their parent’s property in this way, i.e. by depriving the parent of their business capacity, they make it impossible for him to independently conclude such a contract.From all the above, we see that the need to initiate such procedures in most cases arises from various practical and life reasons.
One of the cases that can serve as an example for a better understanding of the possible situations described above is the case of one of our clients whose father was demented years ago (although he is a middle-aged person), and various carers provided him with help in his daily functioning. One of them worked for him for a long time, and over time they became so close that he helped her finance her daughter’s wedding, pay for her studies, but also made constant financial contributions directly to her (in addition to the salary she received for her work). Our client realized in time that due to his illness, his father no longer understands not only the value of money, but also the bad intention that the caregiver had towards him. Therefore, the only thing he could do to protect his father’s property was to initiate proceedings to deprive his father of business capacity. In this way, the possibility was prevented that the father would at some point sign a contract in which he would alienate his property in favour of the caregiver or that, for example, he would continue to go to the bank on his own and withdraw the money that he then gave her.
When we talk about this type of procedures, we should keep in mind that age is not the most important criterion when talking about these procedures. At the beginning of this section, it was said that these procedures are most often initiated when it comes to elderly people who need help in their daily functioning, but practice knows many other cases as well.
There are also relatively common cases where a middle-aged person has a mental illness years ago (or from the earliest days of life), but the illness has progressed over time and led to the fact that, although he is not an elderly person, he can no longer function independently. In such cases, there is a need for the brother or sister of that person to take care of his life to control him, protect him and adequately take care of his health and property in the best possible way.
WHAT DOES THE PROCEDURE FOR DEPRIVATION OF BUSINESS CAPACITY LOOK LIKE?
The procedure for deprivation of legal capacity is initiated by submitting a proposal for deprivation of legal capacity of a specific person to the basic court, according to the place of residence of the person whose legal capacity is requested. The procedure itself is simpler than classic litigation, because it is conducted according to the rules of the Law on non-litigation proceedings. The person who submits a proposal for the deprivation of business capacity (the proposer) in this procedure has the role of the proposer, while the person whose deprivation of business capacity is proposed has the role of the proponent’s opponent.
The Law on non-litigation procedure clearly states which persons can initiate this procedure. In the first place, the law states that this procedure is initiated by:
(1) court ex officio (which rarely happens in practice),
(2) guardianship body (more common situation) – center for social work (“CSR”).
(3) spouse (or common-law partner),
(4) children,
(5) parents of persons who should be deprived of legal capacity.In practice, the last three groups of authorized proposers most often appear as submitters of proposals for the deprivation of a person’s business capacity.
Also, the procedure can be initiated by a proposal:
• grandparents,
• brother, sister,
• granddaughter.For this group of authorized proposers, an additional condition is set that these persons must live in a family union with the person who should be deprived of business capacity. This practically means that in this case the proposal for deprivation of business capacity must also contain adequate evidence of the fact that the proposer and the opponent of the proposer live at the same address.
Finally, the situation that is rarely encountered in practice is that this procedure is initiated by the person who needs to be deprived of legal capacity, provided that he can understand the meaning and legal consequences of his proposal. Although it is not common, this option is certainly possible, because the Law on non-litigation procedure lists that person as an authorized proposer. As a condition, it is required that the person can understand what conducting such a procedure means for him.
This legal possibility in theory meets with different views, since it is illogical in life. Namely, it does not make much sense for someone who is able to understand the importance and legal consequences of submitting a proposal for his own deprivation of business capacity, at the end of the procedure, to be deprived of business capacity. In other words, someone who can understand the complexities of court proceedings for disqualification is likely to be capable of undertaking and understanding many other actions as well.
Proposal for deprivation of business capacity
A proposal for deprivation of legal capacity of a person must be submitted in writing to the court having jurisdiction over the place of residence of the person whose legal capacity is being proposed.
This proposal must meet all formal requirements (correctly marked court, proposer and opponent of the proposer), and then all the facts and evidence on which this proposal is based. Therefore, the proposal must contain a detailed explanation of the reasons for which it is submitted and the evidence that supports such statements. In addition, the proposal must also contain data from which the authorization to initiate the procedure is derived.
In the case when the proposal is submitted by the spouse or relatives of the person whose business capacity is proposed to be revoked, it is necessary to prove these facts with an appropriate extract.
The proposal usually includes data on the immovable property owned by that person, because the court must report the real estate cadastre on the initiated procedure to record the procedure.
In addition to the real estate cadastre, the court must also inform the registrar who keeps the register of births for that person.
The course of the procedure
After the court receives the proposal for deprivation of legal capacity, it checks whether the proposal meets all formal requirements. If the proposal fulfills these conditions, the competent guardianship authority – CSW according to the place of residence of the person whose business capacity is requested to be deprived of business capacity is informed about the initiated procedure.
CSW, upon receiving notification from the court, implements the procedure for appointing a temporary guardian to the person whose deprivation is proposed.
Temporary guardian
The reason for the existence of the role of a temporary guardian lies in the fact that for a person whose deprivation of legal capacity is proposed, the very fact that such a procedure has been initiated implies that that person needs help in protecting their own rights and interests. Therefore, the task of the temporary guardian is to ensure that the procedure for depriving a person of business capacity is conducted properly and legally and that the decision is made in the best interest of that person.
The temporary guardian is usually one of the closest relatives of the person whose legal capacity is proposed. In order for the person proposed as a temporary guardian to be designated as a temporary guardian, CSW will ask the other closest relatives of the person whose deprivation is requested to agree to it. After the relatives agree and the person proposed as a temporary guardian collects the necessary documentation required by the CSW, the CSW issues a decision authorizing that person to temporarily represent the interests of the person whose legal capacity is sought. In that decision of the CSW, the exact scope of work in which the temporary guardian represents the person against whom the deprivation procedure has been initiated is determined.
One of the most important functions that the temporary guardian certainly has is that he represents the person in the court proceedings whose deprivation of business capacity is requested and participates in the proceedings on an equal footing, until the proceedings are concluded.
After this procedure, which takes place before the CSW, is completed, the court will schedule a hearing upon notification that a temporary guardian has been appointed.
Hearings in the procedure for deprivation of business capacity
The petitioner, the person against whom the proceedings are conducted, his temporary guardian and CSW are always invited to the hearings.
According to the law, the court is obliged to hear the person against whom the proceedings are conducted, and if that person is possibly in a health institution, it will hear him in that institution. The hearing of this person may be waived if it could be harmful to his health or if the hearing is simply not possible due to the mental or physical condition of that person.
This, of course, does not mean that the decision on deprivation of business capacity will inevitably and always be in accordance with the opinion of the person in question, but it is of crucial importance that that person is involved in the decision-making process, and that he receives an explanation as to why a different decision had to be made than the one he wanted.
Another reason why the hearing of this person is important is that only through the personal statement of that person can the court personally determine that the conclusions of the court experts (which will be discussed later) are not arbitrary and that the factual state of affairs corresponds to what was stated in the medical documentation.
In addition, the court is obliged to listen to the temporary guardian, the petitioner, as well as other persons who can provide the necessary information about the life and behavior of the person against whom the proceedings are conducted.
Expertise in the procedure of deprivation of business capacity
The finding and opinion of an expert on the state of mental health of the person, according to whom the proceedings are conducted, is one of the pieces of evidence that must be obtained in this proceeding. This is prescribed by the Law on non-litigation procedure itself. The specific provision that regulates this requires that the person whose business capacity is decided upon must be examined by at least two doctors of the appropriate specialty.
It is an imperative legal provision, and its purpose is to determine the state of health of the proponent’s opponent through an examination by a specialist doctor and to draw up a medical expertise (findings and opinions of court experts), and not to deprive a person of legal capacity “lightly”. Therefore, expert testimony represents relevant evidence for establishing and clarifying facts by experts as experts in a specific field.
In this sense, the previous medical documentation that the proposer would possess would not be sufficient by itself to deprive a person of business capacity based on it. Namely, the court does not have the professional knowledge to interpret and evaluate the same, and to assess the state of mental health of the proponent’s opponent, but it does so with the help of experts – experts.
In these proceedings, the forensic experts who perform the examination are usually psychiatrists or neuropsychiatrists (depending on the nature of the condition/illness). A possible examination by a psychologist would not be adequate evidence, since a psychologist is not a person who has graduated from medical school and cannot be found on the list of registered forensic experts.
Outcome
After the court has presented all the evidence (hearings and inspection of the expert’s findings and opinion), it will close the hearing, and the decision on whether to deprive the proponent’s opponent of legal capacity will be made in the form of a decision.
With this decision, the specific person is completely or partially deprived of business capacity. The decision must also contain a deadline for checking whether there are reasons for further duration of the imposed measure of deprivation of business capacity. That term cannot be longer than three years.
After the proceedings before the court are completed, the procedure before the CSW follows, which entails the appointment of a (“permanent”) guardian to a person who has been deprived of legal capacity. By adopting a decision appointing a guardian, the person who until then had the role of temporary guardian will be relieved of that duty.
Practical notes for conducting this procedure
Disqualification proceedings are urgent, which means they take less time than most other court proceedings. You can draft a proposal for deprivation independently or through a lawyer. Considering the complexity of the procedure itself, our recommendation is that before starting the procedure, as well as during it, you have the support and help of a lawyer to carry out the procedure as efficiently as possible.
As for the costs of this procedure, they include the court fees that are paid to the court for the conduct of the procedure itself, and there is also the advance of costs for expert testimony, which, as we have seen, always must be done. If you decide to be represented by a lawyer in this procedure, add the lawyer’s fee to the mentioned costs.
The fee in these procedures includes a fee for preparing an adequate proposal for deprivation of business capacity and a fee for representation at the hearings, of which in practice there are usually 2-3.
Author: Lawyer Damjana Pavleski
