Recognition of a spouse as incompetent. Rights and benefits of citizens declared incompetent

Recognition of a citizen as incompetent – mandatory procedure which must be implemented if he cannot be fully responsible for his actions. Most often, the situation arises in the case of the active development of a psychological illness. The patient's actions become uncontrollable and can harm himself or others.

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Types of disability

Today in judicial practice deprivation of legal capacity is carried out in full or partial volume. In many ways, decision-making depends on the severity and nature of the manifestation of psychological illness.

A person is declared incompetent by following cases:

• Diagnosed with severe mental illness.
• The patient cannot take responsibility for performing certain actions. It becomes difficult for him to control them.

Important! Deprivation of legal capacity implies that in the future a particular person will not be able to carry out legal manipulations.

For example, an elderly person will not manage his pension and go shopping at the store. All necessary manipulations fall on his shoulders legal representative - guardian.

Declaration of incompetence

When mild illness the psyche is only limited in the ability to make independent decisions. However, in mandatory must be fulfilled following conditions:

• A deterioration in mental functioning was diagnosed.
• Man with outside help can fully control his actions.

If legal capacity is limited, then the person may well perform ordinary household manipulations. However, to conclude serious deals the trustee's opinion will be required.

You need to know how to recognize a person as incompetent. The manipulation is carried out V judicial procedure . To do this you will need to contact government agency, which is located at the citizen’s place. If he undergoes treatment, all documents are submitted at the location of the hospital.

The first step is to find out where to start. this process. It is recommended to file a statement and take it to court. Additionally, it is necessary to clarify which persons are authorized to perform such manipulation. legal grounds:

• Husband or wife.
• The person who is this moment lives together with a person.
• Son or daughter whose age is over 18 years old.
• Other close relatives.
• Guardians.
• Hospital workers, in which the patient is being treated.
• Employees of institutions for the disabled.

No one forbids a person to independently file a statement in court. He may need a certificate of legal capacity or confirmation of its absence.

To begin the trial, you will need to pre-pay a fee in the amount of 300 rubles. These are the only costs that legislation provides for in the course of conducting a case.

If the government body was able to establish that the applicant with malicious intent tried to deprive a person of legal capacity, then he pays all the costs himself.

Deprivation of legal capacity begins with drawing up an application. Its sample can be taken in court or downloaded from any Internet resource. Paper is a must should include:

• The name of the institution to which the application is made.
• The applicant indicates his full name. You will also need your residence address and actual residence.
• All necessary information about a patient who is planned to be deprived of legal capacity. If necessary, the case must be accompanied by medical certificates and reports. Document confirming the assignment of disability status.
• Additionally, you will need to confirm your relationship. Only in this case will the application to the court be accepted and considered within a short period of time.
• A person is declared incompetent if the facts are provided. To do this, specialists must certain period time to observe a person.
• A petition must be filed with the court about establishing guardianship.
• The applicant must fill out all documents, issue certificates and extracts. The case will not be started without paying the state fee. A receipt will be provided as confirmation.

Consideration of the case

Before starting the process, the applicant must collect the grounds. The procedure and consequences must also be explained to him in advance. In any case, the judge will appoint passing a forensic examination about the psychological state of a person. If the case contains a sufficient number of certificates, then it will be carried out in absentia mode.

A mentally ill person is declared incompetent in a hospital setting. If a person refuses hospitalization, the court will send him there to forcibly. This is the basis for issuing a certificate of legal capacity or confirming its absence. Only after all these manipulations have been completed will the court be able to rule special definition.

A citizen is recognized as incompetent if at the meeting all parties are present.

Decision to limit legal capacity

We have already figured out how to formalize the incapacity of an elderly or mentally ill person. Limited Solution issued in the following cases:

• A man, due to his addiction to games, alcohol or drugs, brought his family to a difficult financial situation. In this case, guardianship is established over him for a certain period. He can't do it on his own carry out transactions, which are associated with material benefit. The guardian will make all decisions based on the benefit of the individual.
• A certificate of limited legal capacity is issued if, due to mental illness, the patient can independently manage his actions. Additionally, a trustee is appointed over him.

Children may be faced with the question of how to formalize the incapacity of an elderly relative. To do this, they will have to adhere to a similar scheme. You can also limit his ability to make serious decisions without written consent trustee. In this case, transactions are considered valid only when collected a complete package of documents.

Incapacity of an elderly person

Before declaring a person incompetent, it should be understood that this step serious and he doesn't have reverse action. Every isolated case accepted in court only if there is sufficient evidence base. An elderly person is recognized as incompetent based on the following factors:

• Mental disorders, which are documented.
• With a detailed analysis of a person’s actions, obvious signs of illness can be detected.
• Providing any evidence that may support the patient's inability to take responsibility for his or her actions.
• The man has reached of a certain age.
• Testimony of witnesses.

How to register the incapacity of an elderly relative? The process is quite complex and requires some effort from the interested party. If a person is in good health, then no one will take away his ability to independently make all the necessary decisions

Factors influencing the decision

Today in judicial practice they use two real reasons , which give the right to declare a person incompetent:

• The patient cannot make decisions independently. He doesn't even realize the significance of certain actions. There are cases when people cannot take control of them.
• The person has previously been diagnosed with a serious mental illness.

Important! In practice, the legal capacity is most often limited to people who behave inappropriately and may be socially dangerous.

Useful video: how to recognize a citizen as incompetent?

This process is carried out in relation to old people who have lived to old age. In this case, the examination is carried out in relation to the state of health. In some cases, only a restriction is imposed on the ability to make independent decisions in a certain area. It is important to carefully read all the nuances of the process. Thanks to this, it will be possible to increase the chance of a positive outcome of the case, which will give the required result.

Incapacity is a fairly serious characteristic. Recognition as incompetent leaves an imprint on a person’s future life. In fact, such a person is by default considered dangerous to society. It is believed that it can cause harm to other people and to oneself. Reasons for assigning a characteristic incompetent person must be significant. The following information is presented in more detailed and organized form.

Concept of incapacity

Incapacity is a concept that refers to legal field and assumes that an individual cannot fully bear responsibility for his actions and exercise civil rights. The status of incapacitated person is issued in accordance with various mental disorders, which are confirmed by the conclusion of a medical professional.

Since legal capacity is directly related to civil liability, all criteria and other data related to this status are reflected in the Civil Code of the Russian Federation.

Incapacity is divided into 2 types: medical and legal. Medical incapacity is characterized by the presence serious violations and deviations from the norm in the mental health of a citizen. Legal side disability is characterized by how deep the disease is, and to what extent the disease interferes with the quality implementation civic activities person.

Incapacity

A free person can only be declared incompetent by a court after forensic medical examination. Such a person automatically acquires, but at the same time loses certain rights.

An incapacitated person cannot be left alone, therefore, at the request of the court, guardianship is assigned to him by the guardianship and trusteeship authorities. In this case, the guardian must provide the guardianship authorities with several documents confirming the ability to care for another person and provide the necessary support.

List of documents for registration of guardianship:

• a certificate from the employer about the level of wages, which shows the ability of the guardian to support an incapacitated person in case of an emergency;
• pension certificate (if the guardian is a pensioner);
• a certificate of health of the guardian, confirming his good and stable physical and psychological condition;
• a document confirming the guardian’s readiness to take care of a person in need (application for guardianship);
• autobiography of a guardian.

The guardian is obliged to represent and protect the interests of his ward, often speaking on his behalf. At the same time, he must act adequately, openly and impartially. This is very great responsibility Therefore, a person must be both morally and physically ready to fulfill the obligations assigned to him.

Everyone has rights

Types of disability

As described earlier, the basic principle of dividing the types of legal capacity is the medical and legal parts. However, there is a more detailed classification:

• Incapacity due to age. All citizens under 18 years of age have this type of incapacity by default, complete Civil responsibility occurs only after adulthood. Minor young people bear slightly different responsibility for committing various illegal acts than adult citizens. The same type occurs at an older age; most often, the recognition of an elderly person as incompetent is the result of some suffered, very serious illness, due to which the person simply ceases to think adequately and be responsible for himself and his actions.
• Associated with mental disorder. As a result of such a disorder, the person also completely or partially loses the ability and ability to adequately respond to the situation, think about his own actions and correctly evaluate the behavior of other people. There are a number of diseases, the identification of which almost automatically leads to recognition of the patient's incompetence.
• Partial incapacity. From the age of fourteen, a child is considered partially capable, as a result of which he can independently freely carry out some legal actions, for example, making contributions and exercising copyrights.

Important! The conclusion of contracts is possible only in the presence of the child’s parents.

Any disability limits a person’s life and affects his behavior and actions.

Incapacity due to age

How to recognize a person as incompetent, where to start

Recognition of personal incapacity is enough complex procedure, requiring resources and time. How to recognize a person as incompetent, and how should preparations for the procedure be organized, what is the procedure for deprivation of legal capacity?

Step-by-step instruction

1. First, you need to understand exactly who can apply for such a procedure. The Civil Code (Civil Code of Russia) describes in detail the small circle of persons who can file a claim for recognition a certain person unable to fully carry out their activities as a full citizen of their country and a member of society. This circle includes the participant’s family (mother, father, brothers, sisters, children), close relatives (spouses, grandparents), guardianship and trusteeship authorities, as well as authorized institutions, for example, a neurological clinic in which the citizen was/is being observed.
2. Having decided who will submit the application, you need to understand where to apply and which body is responsible for considering cases of this category. This type of application is considered by the district court at the plaintiff’s place of residence. You must have a passport with registration in a specific area.
3. The next step is to complete the application. To properly file a claim, you must follow all the rules. In the application, it is important to correctly indicate the name of the court to which the claim is being filed, its address and the addresses of the authorities interested in recognizing the incapacity of a person, for example, psychiatric hospital. The document details the reason why it should be approved. It is important to indicate the reason, whether it is a stroke or some kind of mental illness. It is also necessary to specify the article of the Civil Code in accordance with which this application is submitted.
4. Carrying out an examination. Immediately after receiving the application, in order to decide whether a person can be recognized as legally incompetent, a forensic examination must be carried out, which will help determine whether the person really cannot exercise his rights and obligations due to deviations in his health. Most often it comes in two types: laboratory and inpatient and includes a high-quality and detailed examination by a psychiatrist.

Before submitting an application to the judicial authorities, you must prepare all the documents:

• a copy of the patient's passport;
• pension certificate (if any);
• certificate of the patient’s presence in the hospital (if any);
• a certificate from the authorities confirming residence at the place of residence;
• documents confirming family connection with the sick;
• certificate of payment of state duty;
• sample application.

If the entire procedure was carried out without any violations, then the court begins to consider the case. At the same time, at the final meeting the presence of the person who is recognized as legally competent is mandatory. However, in some compelling cases (for example, if a citizen is disabled), his presence does not play any role. Taking into account the forensic psychiatric examination, the court can make a decision in approximately three months.

How to appeal a decision to declare a citizen incompetent

Having figured out how to formalize incapacity, it is also important to keep in mind how to appeal a court decision if something happens.

Appeal

A court decision declaring a citizen incompetent can be appealed within one year (but more often within a much shorter time, exact date appeals are reported directly at the meeting).

Note! The application must be filed in the superior court by the same group of persons who are entitled to file the initial application.

The incapacitated person himself cannot file a claim if the court's order has already entered into force. However, if the court decision has not yet entered into force, then the person against whom the case is being conducted can prove his legal capacity, the fact that he does not need guardianship, and even the fact that they wanted to deprive him of this right illegally and the reason for this is, for example, old grievances.

To make a decision, the court starts again forensic examination. Many practitioners claim that capacity can indeed be restored. The face is restored in various civil rights ah, gets the opportunity to start life again. However, in this case the person will lose the right to various social benefits.

Is it possible to recognize a person as incompetent if he is an alcoholic or drug addict? An alcoholic or drug addict can also be declared incompetent. However, for this it will not be enough to provide a certificate from the hospital; it is also necessary to provide evidence: for example, recordings from CCTV cameras or witness statements. The application can also be submitted by immediate family members. During judicial investigation a medical examination is appointed, which should indicate the need to recognize incapacity or the lack thereof. Witnesses may also be present at this type of court hearing.

The procedure for declaring an elderly person incompetent

Old age

Old age tends to have a negative impact on the mental and physical conditions person. An elderly person often loses his memory, stops recognizing his relatives, stops walking, and so on. In this case, the family wants to do everything possible to help him. Declaring him incompetent is one of the options for help. The reason should be the inability of an elderly person to control his actions.

Required documents for submission by relatives of the old man:

• a document that confirms the relationship;
• certificate from the hospital;
• certificate of appointment of the examination;
• certificate of payment of state duty.

Recognition of a pensioner as incompetent is also carried out through the court.

There are payments and benefits for this category of citizens. The law provides benefits for free medical care, traveling to public transport and significant discounts on medications.

Declaring a citizen incompetent is a difficult procedure, both psychologically and financially, so the relatives of such a citizen must thoroughly prepare for this process.

A person is not always able to react correctly to the reality around him and make decisions appropriate to the situation. When, for one or another objective reason, a person cannot independently interact adequately with society, the citizen may be declared incompetent in the prescribed manner.

Concept of incapacity

Legal capacity and incapacity are two opposite terms that cannot but be considered together.

The legal capacity of a person is the ability in the process of his life activity
exercise your rights and fulfill your responsibilities in in full.
This term is disclosed in paragraph 1 of Art. 21 Civil Code of the Russian Federation.

The concept of incapacity is explained in Part 1 of Art. 29 of the Civil Code of the Russian Federation, according to which, an incompetent person is a person who, due to the presence of a mental illness, cannot understand the meaning of his actions or cannot direct them.

The following criteria for incapacity are distinguished:

1. Medical. This criterion means that a person is recognized as incompetent when he has a mental disorder that prevents him from realizing his rights and responsibilities in an adequate manner;
2. Legal. This criterion implies the impossibility of sensibly assessing the situation and making specific decisions in accordance with it without the help of third parties.

Please note that with legal criterion Closely related is the fact that only a court can declare a person incompetent. Only after receiving by judicial act legal force, the person receives the status of incompetent.

Recognition of a person's incapacity is the basis for appointing a guardian for him. Such a person, on behalf of a citizen recognized as incompetent, makes transactions or other actions in his favor. The appointment of a guardian is regulated by the Federal Law “On Guardianship and Trusteeship” dated April 24, 2008 No. 48.

Types of disability

Today there are several criteria for incapacity:

1. Incapacity due to age. It is appropriate to talk about this category in relation to children under the age of majority or in relation to elderly people. In the first case, the inability to be responsible for one’s actions is caused by young age, lack of experience and knowledge. The second case is characterized by the presence of changes in the facial body, including nervous system that do not allow a sober assessment of the environment;
2. Incapacity due to mental illness. This category of incapacity can only be established if there is medical documents, which confirm that a person is not able to adequately perceive reality;
3. Partial incapacity. This category is characterized by the ability of a person to adequately perceive the surrounding reality, however, due to some objective reasons, the reaction to such reality is not always rational. A person who has addictions or addictions, for example, is often recognized as partially incompetent. gambling, alcoholism and others.

How to declare a person incompetent

The procedure for declaring a person incompetent is strictly regulated by the legislator.

The law strictly defines the category of persons who have the right to apply for recognition of a person as incompetent, the grounds for declaring a citizen incompetent, and the bodies competent to consider this issue and make a decision on it.

Who can apply

The incapacity of citizens can be recognized on the basis of an application, which can be submitted by one of the following categories of persons:

• A spouse or a person living together as a citizen;
• Children who have reached adulthood;
• Parents who are competent;
• Representative of the guardianship and trusteeship authority;
• A representative of a medical institution;
• Representative social institution where a person with disabled status lives.

Where to contact

To declare a person incompetent, you must contact the district court at the place of its registration. It is this body that is authorized to make decisions.

If it is impossible to go to court, it is possible to appeal to the guardianship and trusteeship authority, which, after receiving an application, applies to the judicial authority on its own behalf with an application.

How to write an application

So, as previously stated, only a court can recognize a person as incompetent. To do this, you must contact the authority with a corresponding application.

The application must contain the following information:

1. Full name of the authority (as a rule, this category of cases is considered by district courts);
2. Personal data of the applicant, information about his place of residence, contact information;
3. Data of the person in respect of whom the process of recognition as incapacitated is initiated;
4. Next, the circumstances are indicated in accordance with which there are grounds for declaring a person incompetent;
5. A request to the court to deprive a person of his legal capacity;
6. A list of documents that are attached to the application and serve as evidence.

Carrying out an examination

A mandatory document, in the presence of which a citizen may lose the status of legal capacity, is the conclusion of a forensic psychiatric examination, which confirms the fact that the citizen has mental illness.

The appointment of such a study is carried out on the basis of a court decision. A psychiatric forensic examination can be carried out forcibly in cases where the court finds that a person is avoiding undergoing it.

The study is carried out under the following conditions:

• Stationary;
• Outpatient;
• During the trial.

The expert poses questions that are the object of the case study. Based on the answers, the court makes a conclusion about the presence of reasons for deprivation of legal capacity or their absence.

In the absence of sufficient grounds for her appointment, the court decides not to appoint her and refuses to satisfy the claim.

Required documents

There are several recommendations regarding what documents are needed in order for the court to consider and satisfy the application. The need to deprive a person of legal capacity can be proven through preparation the following list documents:

• The results of the psychiatric examination;
• Certificate confirming that a person is registered as a psychiatric patient;
• Documents confirming the citizen's disability.

The applicant must also prepare:

• Documents confirming his identity and the identity of the person in relation to whom the procedure is being carried out;
• Family composition document;
• Evidence confirming the existence of family relationships.

Making a decision

After considering the application, as well as all documents attached to it, the court makes a decision. The decision receives legal force only 30 days after its announcement, in the event that the person against whom the process was carried out did not file an appeal.

When the application is satisfied, then after receiving the act of force, it is transferred to the guardianship and trusteeship authorities to carry out the procedure for placing the person under guardianship. If it is not possible to establish a guardian statutory term, the duties of the guardian are temporarily assigned to the social body.

How long does the procedure for declaring incapacity last?

It is impossible to specifically indicate the period of time during which the court considers the submitted application. Each case is individual. As a rule, this period is from three to six months. This period depends on the duration of the psychiatric study and the amount of work of the judge.

How to appeal a decision to declare a citizen incompetent

Today, a citizen deprived of legal capacity based on a decision of the court of first instance has the right to appeal.

Submission of such a document is carried out within a month from the date of announcement of the decision. The complaint is filed through the court that made the decision.

Please note that in appellate court The interests of a citizen can be represented not only by him independently, but also by his representative. The prosecutor, who is the mandatory participants such a process.

Who can make transactions on behalf of an incapacitated person

In accordance with standards civil legislation The right to carry out transactions on behalf of a citizen deprived of legal capacity rests with his guardian. The guardian must act in the interests of the ward. He has the right not only to make transactions, but also to dispose of property with the consent of the guardianship authority. ABOUT completed transactions, the guardian reports to the social authority.

Is it possible to recognize a person as incompetent if he is an alcoholic or drug addict?

In some families, the question arises: is it possible or a drug addict?

In accordance with the norms of civil and civil - procedural law, persons who put in a difficult predicament financial situation by their actions seven may be recognized judicial authority partially incapacitated or a citizen. After the entry into force of such a decision, a trustee is appointed for such persons no later than three days. Any capable family member of a person can obtain such status.

Please note that partial incapacity allows a person to exercise his rights to a limited extent; he retains the ability to enter into transactions that are not large. Major deals are carried out only with the approval of the trustee.

For a court to deprive such persons of full legal capacity, objective grounds are necessary. As a rule, in such cases, an examination is prescribed to determine mental state.

Please note that undergoing such a study depends on the will of the person. When he refuses to undergo such an examination, his recognition as incompetent is impossible.

How to register the incapacity of an elderly person and what documents are needed

To recognize the incapacity of an elderly person, his relative must prepare the following list of documents:

• Statement;
• Identification documents of the applicant and the elderly person;
• Evidence confirming family relations;
• Certificates of mental illness or disability status.

Only a court can declare an elderly person incompetent. The application is submitted at the place of registration of the senior citizen. Capable relatives have the right to apply. The procedure is identical to depriving a person of legal capacity who has not reached old age.

Payments and benefits

Guardians of persons who are incapacitated receive from the state the following types help:

1. Additional payments (issued at the Pension Fund office);
2. Subsidies:
   • For payment of utilities;
   • Transport services;
   • Medical services.
3. Privileges:
   • Reduced tax rates;
   • Possibility of receiving free legal services and notary services;
   • Free treatment of the person under care in sanatorium and resort organizations.

Legislative regulation

The process of depriving a citizen of legal capacity is regulated by the following regulatory documents:

1. Civil Code of the Russian Federation of November 30, 1994 N 51 - Federal Law;
2. Civil Procedure Code of the Russian Federation of November 14, 2002 N 138 - Federal Law;
3. Federal Law “On Guardianship and Trusteeship” dated April 24, 2008 N 48 - Federal Law;
4. Order of the Ministry of Health of the Russian Federation dated January 12, 2017 N 3n “On approval of the Procedure for conducting a forensic psychiatric examination”, after the document entered into legal force.

Thus, the process of depriving a person of his legal capacity is quite complex. For a person to obtain such status there must be objective grounds, in the presence of which only the court has the right to declare a citizen incompetent.

Question details: What is the procedure for registering the incapacity of an elderly person who has bad memory and orientation?

Answers to the question

Good afternoon.

Recognition of a citizen as incompetent. Reasons and order

The concept of complete partial capacity and incapacities are on the same page and are aimed at assigning to a person as a citizen, certain rights and responsibilities.

Due to illness, reaching a particular age, or mental disorder, a person may lose the ability to understand the meaning of his actions. At such a moment in his life or throughout it, a person ceases to control his actions and, accordingly, may be declared incompetent.

Types of disability

Today, there are several types of incapacity:

age-related incapacity;

Age-related incapacity occurs before the age of majority, namely the age of eighteen, and in very old age, when as a result age-related changes a person ceases to control his actions and loses legal capacity. If in the first case the incapacity arises from the condition of being in a certain age category, then in the second case the procedure for recognizing incapacity will be the same as for a mental disorder or disease.

incapacity due to mental disorder;

As the name suggests, it arises as a result of a citizen’s loss of the ability to adequately perceive reality and be responsible for their actions and deeds.

partial incapacity;

This incapacity limits a number of rights and obligations of a citizen.

Grounds and procedure for declaring a citizen incompetent

The procedure and grounds for declaring a citizen incompetent are enshrined in the civil code procedural legislation. In Art. 29 of the Civil Code of the Russian Federation states that only a court can recognize a citizen as incompetent. That is, in order to recognize a citizen as incompetent, the court must establish the existence of legal and medical criteria In total.

Medical criterion is the presence of a mental disorder or disease in a citizen.

The legal criterion is the inability to direct one’s actions ( moment of will) or inability to understand the meaning of one's actions (intellectual aspect).

According to Art. 29 of the Civil Code of the Russian Federation, not every mental disorder can be the basis for a citizen’s loss of legal capacity, but only one that does not allow him to direct his actions and realize their meaning and consequences. The Law “On Psychiatric Care and Guarantees of the Rights of Citizens in its Provision” states that only if a citizen is in a psychoneurological institution as an inpatient or dispensary observation cannot lead to loss of legal capacity. Namely, based on diagnosis alone, it cannot be said that a citizen is incompetent.

The Civil Procedure Code of the Russian Federation contains articles devoted to the procedure for declaring a citizen incompetent (281-286).

Art. 281 of the Code of Civil Procedure of the Russian Federation states that the following have the right to submit an application to the court to recognize a citizen as partially capable or completely incompetent:

family members, psychoneurological or psychiatric institutions, guardianship and trusteeship authorities (in cases of abuse by a citizen drugs or alcoholic beverages – limitation of legal capacity);
close relatives, family members, guardianship and trusteeship authorities, psychoneurological or psychiatric institution(mental disorder of a citizen - recognition as incompetent).

The application is submitted to the court, either at the citizen’s place of residence, or at the place of the psychiatric or psychoneurological institution in which he is being treated. In order to prepare for the case, the judge, having strong evidence of a citizen’s mental disorder, is obliged to appoint a judicial psychiatric examination, to determine the mental state of the latter (Article 283 of the Code of Civil Procedure of the Russian Federation). Failure of a citizen to undergo this examination entails a court decision to compulsorily send the citizen for a forensic psychiatric examination.

When considering a case on declaring a citizen incompetent and making a decision, the court must proceed from the following facts:

presence of a mental disorder;
a causal connection between a citizen’s lack of understanding of the meaning of his actions, the inability to manage them and mental disorder;
facts confirming that the citizen is not able to direct his actions and cannot understand their meaning;
citizen achievement established by law the age at which the question of recognizing him as incompetent becomes a question;
other circumstances.

Evidence required to declare a citizen incompetent:

conclusion of a forensic psychiatric examination;
certificates confirming that the citizen is registered at a psychiatric dispensary;
certificates from a medical institution;
MSEC certificates;
evidence of a citizen’s lack of ability to manage his actions and realize their significance (materials investigative authorities, witness's testimonies, conclusions of previously conducted forensic psychiatric examinations, etc.);
other evidence.

The Civil Procedure Code implies a presumption of legal capacity of a person, which means that until the corresponding court decision is made and until it comes into force, any person is recognized as legally competent. Therefore, the applicant has the responsibility to prove the existence of circumstances that indicate the incapacity of the citizen concerned. Persons interested in proving the legal capacity of a citizen and objecting to the stated requirement may present in court evidence of the absence of grounds for declaring the person incompetent.

Recognition of a citizen as legally incompetent requires the presence of guardianship and trusteeship authorities, as well as a prosecutor, at the court hearing. The participation of guardianship and trusteeship authorities is due to the need to appoint a guardian or trustee for an incapacitated person. Each of these participants gives its own conclusion when considering cases of this category.

If a citizen recovers, the Code of Civil Procedure of the Russian Federation provides for the procedure for recognizing him as legally competent. This requires a sustainable improvement in the mental state of the person, a conclusion from a forensic psychiatric examination about changes in the mental state of the citizen.

Incapacity occurs when a person has not yet reached mental maturity and cannot control and understand the importance of his actions or has lost this ability.
For various reasons (minority, alcohol abuse, drug addiction), the court may make a decision to formalize the partial incapacity of citizens (Article 30 of the Civil Code). If a person’s drunkenness and drug addiction jeopardize the financial well-being of his family, incapacity is registered in court and guardianship is assigned to the incapacitated person.
Minor citizens have the right to independently carry out only minor transactions, manage their income, and claim authorship intellectual property. A minor can perform other actions with the consent of his parents, guardians or adoptive parents. The reasons why the court may recognize limited legal capacity a citizen under 18 years of age is an application from parents or guardians, as well as unreasonable spending by him own income for the purchase of alcohol and drugs, etc.
But only mental disorders that do not allow a person to adequately perceive reality and control his actions are a real reason to file statement of claim on recognition of full incapacity. In this case, the person may be forcibly hospitalized in specialized inpatient departments to undergo a psychiatric examination.

PROCEDURE FOR REGISTERING THE INCAPACITY OF A CITIZEN IN COURT.

The procedure for declaring a citizen incompetent is determined by the Civil Code of the Russian Federation. It also provides for a number of grounds on the basis of which incapacity may be recognized.
According to the laws of the Russian Federation, only a court can recognize a citizen’s incapacity. The basis for initiating a case is a declaration of incapacity, which clearly states the reasons for filing the claim and the circumstances that indicate the presence of mental disorders in a person.
And yet, how to recognize a person as incompetent? The wisest thing, of course, is to contact lawyers who specialize in cases of declaring citizens incompetent. They will advise you on how to correctly draw up a claim for declaring a citizen incompetent and will help you substantiate the reasons for the need to register incapacity, and will determine the competence of the case. It should be noted that members of his family or close relatives, as well as psychoneurological institutions and trusteeship and guardianship organizations can file an application to declare a person incompetent. An application for declaring a citizen incompetent is submitted at the place of his residence or the location of the psychoneurological institution in which this person is being treated.
Based on the statement of claim for recognition of incapacity, the court orders an examination of the citizen’s incapacity. Based on the results of a forensic psychiatric examination, the court makes a decision to recognize the person as incompetent and decides to appoint guardianship over the incompetent. If possible, the court hearing takes place in the presence of the citizen about whom the decision is being made.

FORENSIC PSYCHIATRIC EXAMINATION IN CASES OF DECLARING A CITIZEN INCOMPETENT.

The procedure for declaring a citizen incompetent requires a mandatory forensic psychiatric examination. The examination for incapacity is carried out by qualified psychiatrists in an inpatient, outpatient, or directly in the courtroom setting. Unlike a one-time outpatient examination, an inpatient examination is carried out in psychiatric departments of medical institutions and can take up to 30 days. After which, in some cases, the court may require examination of the citizen’s legal capacity at a court hearing.
An examination of incapacity may be ordered only if the court is provided with medical certificates and extracts from the medical history that indicate a person’s mental illness (congenital or acquired), acts and documents confirming deviations in the citizen’s behavior and his violation of generally accepted norms.
The purpose of the incapacity examination is to diagnose the absence or presence of mental disorders in a person, determining the degree of their influence on the ability to understand and control one’s actions. Experts assess the degree of mental disorders, their dynamics and make a prognosis for the disease.
The disability examination should answer questions about the person’s ability to adapt to social environment, his ability to work and the degree of aggressiveness in relation to society, the need to appoint guardianship over the incompetent.
Recognition of the incompetence of persons who abuse alcohol and take drugs may also require an examination for incapacity. Its purpose is to determine the real state mental health and determining the degree of responsibility of a person for his actions.
A citizen’s evasion from examining his incapacity and determining his real mental state serves as a reason for the citizen’s forced placement in a psychiatric institution.

APPEALING A DECISION TO RECOGNIZE A CITIZEN INCOMPETENT.

In the context of an increase in the number of various scams and frauds in the real estate market, the lawyers of the YurbIS company are often approached by citizens who want to challenge the recognition of a person as incompetent. It is unfortunate, but unscrupulous psychiatrists and social workers, “enterprising” realtors and selfish relatives or neighbors who want to take possession of other people’s square meters, by any means they strive to formalize the recognition of a citizen as incompetent. Victims similar transactions find themselves thrown out onto the street, because the person who officially formalized guardianship over incapacitated citizens has already managed to resell the housing.
When resolving inheritance disputes, sometimes it becomes necessary to post-mortem examination and recognition of incapacity after death. Or, on the contrary, you may need to appeal a court decision declaring a deceased person incompetent.
According to Art. 29 of the Civil Code of the Russian Federation, the court can cancel the recognition of a person as incompetent and annul its decision on guardianship over the incapacitated person, if so requested sufficient grounds(cessation of alcohol and drug use, family breakdown, death, etc.).
Based on the results expert opinion For psychiatrists, the court makes a decision on the proceedings and notifies the participants in the process of the time and place of the hearing. At the trial, the issue of canceling the recognition of a citizen as incompetent is resolved and guardianship over incompetent persons is removed. Final decision Guardianship and guardianship organizations can cancel guardianship over an incompetent person.
In any case, we recommend that you obtain detailed legal advice before taking any action to challenge a citizen’s incapacity in court.
Of course, the process of restoring the status of legal capacity, as well as the procedure for recognizing incapacity, is complex and lengthy, but the successful experience of conducting such cases allows our human rights defenders to challenge the determination of the incapacity of citizens and restore their rights.

WHAT RIGHTS AND BENEFITS DOES A DISABLED PERSON HAVE?

Russian legislation guarantees to all citizens equal rights and freedom, regardless of their mental health. Restrictions may occur if there is a need to protect legitimate interests, rights and freedoms of other citizens, their safety.
The state provides citizens declared incompetent with protection from discrimination regarding their mental disorders and the right to appeal to authorities with complaints and statements. Incapacitated citizens have the right to obligatory share in inheritance, the right to preserve and improve health, social services, etc.
Incapacitated citizens have the right to retain housing for the duration of their stay. inpatient treatment. Housing Code The Russian Federation provides certain categories mentally ill citizens opportunity extraordinary receipt housing above the norm and preferential terms payment of utilities.
According to Article 29 of the Civil Code, the right to commit civil transactions belongs to guardians and trustees of incapacitated citizens. A person loses the right to independently dispose of his property and income. Even for illegal actions a person declared incompetent by a court, responsibility rests with the guardians. They also compensate for the damage caused incompetent citizen.
When legal capacity is limited, the legal capacity of citizens is preserved, i.e. a person does not have the right to independently manage his income and enter into transactions, but is responsible for his offenses.

GUARDIANESS OF THE INCOMPETENT.

Based on a court decision declaring incompetent, trusteeship and guardianship authorities appoint guardianship over an incapacitated or partially capable person in order to protect his rights and interests.
Guardians or trustees of incapacitated citizens can be identified as adult capable citizens (Article 35 of the Civil Code) who do not currently have a criminal record for intentionally causing harm to the health or life of people. Guardianship of incapacitated persons is also prohibited for citizens deprived of parental rights.
The court and guardianship organizations, when deciding on the issue of guardianship over incapacitated persons, are guided, whenever possible, by the opinion of the ward himself regarding the candidacy of the guardian. The family relationships of guardians and incapacitated citizens in need of guardianship are taken into account.
The Civil Code indicates that guardianship over an incapacitated or partially capable person is entrusted to persons capable of performing the duties of a guardian or trustee at the proper level. A guardian must take care of his ward, provide him with necessary care and treatment. He has the right to make all transactions on behalf and in the interests of incapacitated citizens.
Guardians are not appointed if the legally competent or incompetent citizens are placed for treatment in specialized medical institutions, are under supervision in educational or other social organizations. In such cases, guardianship over the incapacitated is carried out by the organizations themselves.

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In order to recognize a citizen as incompetent, it is necessary to file a statement of claim in court. When considering the case, the court will order a forensic psychiatric examination, as a result of which a decision will be made to declare the person incompetent. In accordance with this decision, a guardian is appointed by the guardianship and trusteeship authorities.

A case for declaring a citizen incompetent due to a mental disorder can be initiated in court on the basis of an application from members of his family, close relatives (parents, children, brothers, sisters), regardless of the joint residence with him, the guardianship and trusteeship authority, medical organization providing psychiatric care, or inpatient facility social services for persons suffering from mental disorders.

The application for declaring a citizen incompetent must set out the circumstances indicating that the citizen has a mental disorder, as a result of which he cannot understand the meaning of his actions or control them.

In preparation for the trial of a case on declaring a citizen incompetent, if there is sufficient evidence of the citizen’s mental disorder, the judge shall order a forensic psychiatric examination to determine his mental state. If a citizen, against whom a case has been initiated, clearly evades the examination, the court, in a court hearing with the participation of a prosecutor and a psychiatrist, may make a ruling on forced direction citizen for a forensic psychiatric examination.

An application to limit the legal capacity of a citizen, to recognize a citizen as incompetent, to limit or deprive a minor aged fourteen to eighteen years of the right to independently dispose of his earnings, scholarship or other income, the court considers with the participation of the citizen himself, the applicant, the prosecutor, a representative of the guardianship and trusteeship authority . A citizen in respect of whom a case is being considered to declare him incompetent must be summoned to a court session, if his presence in the court session does not create a danger to his life or health or to the life or health of others, in order for the court to provide him with the opportunity to express his position in person or through their chosen representatives.

If the personal participation of a citizen in a court hearing held on the premises of a court in the case of declaring a citizen incompetent creates a danger to his life or health or to the life or health of others, this case is considered by the court at the location of the citizen, including in a medical organization, providing psychiatric care in an inpatient setting, or inpatient facility social services for persons suffering from mental disorders, with the participation of the citizen himself.

The applicant is exempt from paying the costs associated with the consideration of an application to limit a citizen’s legal capacity, to recognize a citizen as incompetent, to limit or deprive a minor aged fourteen to eighteen years of the right to independently manage their income. The court, having established that the person who filed the application acted in bad faith for the purpose of knowingly unreasonable restriction or deprivation of the citizen’s legal capacity, recovers from such person all costs associated with the consideration of the case.

A court decision by which a citizen is limited in legal capacity is the basis for the appointment of a guardian by the guardianship and trusteeship authority.

The state duty is 200 rubles.

According to Art. 21 of the Civil Code of the Russian Federation, citizens who have reached the age of majority, through their actions, can acquire civil capacity, i.e. opportunity to fully enjoy your rights and fulfill civic duties. Naturally, a person must be aware of the seriousness and meaning of his legal meaningful action. Otherwise, it may be necessary to establish the citizen’s incapacity.
Incapacity is the inability of a person to create and exercise his civil rights and obligations. Depending on the circumstances, the court may recognize the absolute incapacity of a citizen or partially limit his legal capacity.
Only a court can recognize a citizen's incapacity. The basis for initiating a case is a declaration of incapacity, which clearly states the reasons for filing the claim and the circumstances that indicate the presence of mental disorders in a person.


• Guardianship of an elderly citizen is formalized in the form of patronage.

  Full guardianship is issued in cases where a person is completely incompetent and has serious illnesses. mental illness. Whatever form of guardianship is issued, you need to contact regional body guardianship and trusteeship, and if the ward is completely incompetent, it is necessary to go to court and organize a medical and psychiatric examination. But it is impossible to force an elderly person to undergo an examination; this is a voluntary procedure.

  The procedure for obtaining patronage is regulated by Art. 41 of the Civil Code of the Russian Federation. In this case, the sick person under his care must write a statement about his desire to be patronized.

  A trustee is appointed by a government agency only with the consent of the ward. It is possible to dispose of the property of an elderly person only if there is an order and a power of attorney from the latter. Care for the ward at home is also carried out only with his consent.

  At the first request of the ward, foster care will be terminated. The state does not provide for payment for guardianship.

  The guardianship and trusteeship authorities are obliged to check the fulfillment of the trustee’s duties and the expenditure Money guardian, etc.

  The guardian must immediately report any changes in the life of his ward to the guardianship authority.

  To apply for foster care, you need to collect a package of documents and contact government agency guardianship and trusteeship.

  If a person is completely incompetent, you should contact the specified government agency, write an application to the court asking to recognize you as a guardian and organize a psychiatric examination of the ward to obtain a doctor’s opinion on the person’s insanity. The court can make 2 decisions: appoint you as a guardian or send the patient for treatment to a psychiatric clinic.

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The conditions for people's incapacity or ability to carry out any actions or transactions are described in the laws of the Russian Federation. IN Civil Code and the Code of Civil Procedure contains all aspects relating to the procedure for declaring a person incompetent; this act also regulates the rights and obligations disabled people. Download Civil law you can read the text of the Civil Code Procedural Code Can

Concept and types

The incapacity of citizens lies in the limitation of their rights and responsibilities. Obtaining such a status is possible if a person is unable to independently manage his actions and actions. The manifestation of its insolvency may be associated with the emergence of many different circumstances. For example, mental imbalance. In any case, the potential guardian must write a statement declaring the citizen incompetent, according to the sample given in the article at the link.

According to the legislation of the Russian Federation, there are two types of legal capacity:

• Limited capacity means limiting human rights, i.e. he is able to independently carry out only certain types of certain transactions. To carry out other types of transactions, he will need written permission from his trustee.
• Complete incapacity implies that the citizen is not able to create for himself civil obligations and carry them out.

The types of incapacity are as follows:

• Age. This type of disability can manifest itself at different ages. Persons under eighteen years of age have the first incapacity. In the second case, it is possible to obtain a similar status in old age, when a person is not aware of his actions and actions;
• Due to mental disorder. This type Disability can occur in citizens at any age. A person with a mental disorder is awarded by authorized persons similar status if he is unable to be responsible for his actions and is unable to control his actions;
• Partial. Upon receipt this status, a citizen does not have the right to perform certain actions independently.

Grounds for declaring a person incompetent

Awarding the status of an incompetent person is possible only during proceedings in court. The basis for declaring a citizen incompetent is only court order, issued after the relevant proceedings.

During the trial, the head of the court takes into account medical reports and opinion legal expertise. An examination conducted by doctors will reveal if a person has mental disorders or other diseases that prevent him from acting rationally. During legal analysis it is revealed whether there is the ability to direct one’s actions, whether there is awareness of the actions taken.

In accordance with the provisions of Russian legislative acts, not all mental disorders can be regarded as a person’s incapacity. When a person is deprived of the ability to make decisions on his own, only mental illnesses that affect his actions are taken into account.

Procedure

Since declaring a person incompetent is possible only by a corresponding court verdict, the appeal should be sent to the court. The category of citizens listed below can file a petition to recognize a person as incapable of making decisions independently.

Who can go to court to refute a person’s legal capacity:

• relatives, these could be members of his family or close relatives. IN in this case, does not depend if they live together with this citizen;
• organizations involved in the diagnosis and treatment of psychoneurological diseases;
• institutions providing people with guardianship and trusteeship.

The court is selected based on the criteria :

• place of residence of the citizen;
• or on the location of the medical psychiatric organization.

The procedure for declaring a citizen incompetent:

• filling out an application;
• compiling a package of necessary documents;
• submitting a petition and papers to judicial institution;
• attendance at meetings;
• carrying out additional examinations doctors;
• announcement of the verdict;
• assignment of the status of an incapacitated person;
• appointment of a person who will exercise guardianship over the citizen.

A person is declared incompetent in court in the presence of significant evidence.

Statement

To begin the procedure for declaring a person incompetent, it is necessary to correctly and correctly draw up a statement of claim. A specific form no, but there are some requirements established by law.

The application must indicate:

• name of the judicial institution;
• information about the applicant. Full name is indicated here. the person filing the claim and his address;
• information about the interested party. Guardianship institutions may act as an interested party. You must indicate the name of the organization and its address;
• table of contents of the document;
• description of the circumstances;
• summary of requirements;
• list of papers attached to the letter;
• the date on which the claim is filed;
• signature of the citizen who drew up the petition.

It is recommended that you familiarize yourself with an example application; the presented document will help you correctly present your situation in the claim. You can download a sample application for declaring a citizen incompetent at link. The claim is submitted to the judicial institution in several copies. The number of copies must correspond to the number of people participating in the proceedings.

In addition to the statement of claim, in order to declare a person incompetent, it is necessary to provide the court with a list of papers.

The following documents are provided to the court:

• a copy of an identity card that may be deprived of legal capacity;
• a copy of a document indicating that the citizen is retired;
• papers indicating the disability of a person who may be deprived of legal capacity;
• papers from a medical organization proving that the citizen is unable to perform certain actions;
• information about place of residence incapacitated person. Such papers can be, for example, extracts from the house register;
• the applicant’s papers, which prove that he is related to the ward. For example, a certificate of conclusion marital relations, birth certificate, etc.;
• a copy of the Russian passport of the person filing the claim.

In the case when not submitted full package documentation or acts contain false information, the court will not accept the claim.

Consideration of the case in court

If the applicant has submitted a complete package mandatory documents, and also filled out the statement of claim competently and correctly, then the court will begin proceedings. The following persons must be present in the courtroom:

• applicant;
• representative from guardianship and trusteeship organizations;
• prosecutor;
• judge;
• a person who wants to be declared incompetent. If that citizen is unable to attend in person, then trial can move to his residential address to listen to his point of view. In case he can create hazardous conditions for life unauthorized persons, a legal representative will speak in the courtroom instead.

In the presence of all specified persons, trial will be started.

The trial procedure consists of several stages:

• the opinion is expressed by the person who filed the claim;
• the guardianship service expresses its point of view;
• the prosecutor expresses his thoughts;
• the citizen against whom the proceedings are being conducted speaks out;
• papers provided by the medical institution are reviewed;
• witnesses speak;
• the doctor who analyzed the patient’s condition provides evidence;
• The judge makes a decision and announces it to all participants in the process.

A court decision to recognize a citizen as incompetent is based on the study of certain facts:

• are there any mental disorders;
• is there a connection between the actions of a citizen with a mental disorder;
• is there evidence that means that the citizen is unable to direct his actions, and he also cannot understand the meaning of his actions due to incapacity;
• other circumstances directly related to the condition of the citizen whom they want to recognize as incompetent.

To judgment was ruled in favor of the plaintiff, significant evidence is required that the person is not legally competent.

Evidence may include:

• information from forensic psychiatric analysis;
• a certificate indicating that the citizen was undergoing treatment in a psychiatric institution;
• papers provided by honey. organization;
• papers from MSEC;
• facts proving that a person is not capable of accounting for his actions. For example, witness statements;
• other facts that may be accepted for consideration by the court.

Subsequently, after the end of the proceedings, the incompetent person needs guardianship. When the court decision comes into force, it is necessary to contact the guardianship authorities to appoint a guardian over the incapacitated citizen. In accordance with the provisions of Russian laws, a guardian is appointed within thirty days. To become a legal guardian, interested party is obliged to submit a corresponding application and package of documentation to these authorities.

What payments and benefits are available to incapacitated citizens?

Disabled people are unable to work, as a result they do not receive wages Therefore, in Russia this category of the population is provided with benefits and payments.

The law stipulates that a guardian and an incapacitated ward have the right to count on receiving certain preferences from the state:

• free travel on public transport, but only within the city;
• tax rebate for transport fees;
• when applying to a judicial institution, no state fee is paid;
• services notary office paid at 50%;
• 50% discount on utility bills;
• free services of a legal specialist;
• the ward receives free sanatorium treatment.

The state pays additional amounts to the pension of the ward for guardianship, since the trustee manages all the income of the incapacitated person.

The income of incapacitated persons includes:

• pension - disability, social or labor;
• monthly payments related to incapacity.

To apply for benefits, the guardian of an incapacitated person must contact the pension Russian fund. A list of papers is submitted:

• statement;
• evidence that the applicant does not receive payments from the Pension Fund;
• papers from the employment center, which will indicate that the citizen is not registered with them as unemployed and looking for work;
• copies Russian passports applicant and incompetent;
• papers from the care organization;
• work records of the incapacitated person and the applicant.

Based on the submitted documentation, authorized persons a decision will be made to make payments or refuse.

Is it possible to challenge a court decision?

The law allows the filing of such claims in connection with the increasing incidence of fraud. Many attackers knowingly provide false information, on the basis of which specific person is recognized as completely incompetent, then guardianship is issued over him. As a guardian, they sell all the property and valuables of the incapacitated person and hide from law enforcement. That's why courts consider cases challenging incapacity.

It is possible to appeal a court decision to assign the status of an incompetent person. To do this, you should contact a judicial institution with a claim and certain documentation. Cancel or lose status capable citizen is only possible during a trial in court.