Full and partial incapacitation

Full and partial incapacitation

I visited a friend today who is caring for her ailing mother. The door was opened to us by an elderly woman. I went inside and she, wandering with her eyes down the hallway, went to the activity she had just interrupted. Absent, unable to verify reality, she did not recognise her daughter, although they had been living together again for more than a year. Progressive senile dementia, mental retardation, inability to direct her actions... that's it in a nutshell reasons for incapacitation.

There is often a perception in society that incapacitation is a bad thing, indicating ingratitude towards the incapacitated person. Meanwhile, in some situations, the court's decision to place a person under guardianship is the necessary and best protection for such a person, often against the person themselves.

Under Polish law we distinguish between incapacitation total and incapacitation partial.

Who can be placed under plenary guardianship?

Under Polish law a person over the age of thirteen, may be placed under plenary guardianship. If, as a result of mental illness, mental retardation or other mental disorder, in particular drunkenness or drug addiction, he or she is incapable of directing his or her behaviour.

Full versus partial guardianship

A person can only be partially incapacitated if he or she needs to be assistance at Running her affairs and her condition does not require total incapacitation.

The following shall be established for a partially incapacitated person curator. On the other hand, for a person who is completely incapacitated, the following shall be established carer (unless he remains under parental authority).

Another difference between the above types of incapacitation lies in the legal capacity. A person who is incapacitated only partly - has limited legal capacity. This means that the validity of these actions in the form of, for example, the conclusion of a contract (with certain exceptions) will depend on the confirmation of this fact by the legal representative of such a person. However, this does not apply to the so-called 'limited legal capacity'. activities unilateral such as granting a power of attorney, terminating a contract or making a will. Such acts performed by a person with limited capacity are void from the outset. An incapacitated person entirely has no legal capacity at all, which means that all acts, whether contracts or unilateral declarations of intent, signed or drawn up by a person under plenary guardianship will be invalid unless they concern small current contracts on of everyday life, e.g. purchase of food, while not entailing a gross disadvantage for the person under plenary guardianship.

For what purpose is a person incapacitated?

Why is it sometimes necessary to deprive someone of their ability to decide for themselves? Is it morally reprehensible to do so? The guardianship process is not an easy process, for a number of reasons. On the one hand, when filing an application for guardianship with the court, the court has to appoint a guardian or curator who will be responsible for managing the affairs of the person who is partially or totally under guardianship; on the other hand, we have the dilemma of whether we are acting morally right, depriving someone of their right to self-determination. However, there are situations in life where we are forced to defend our loved one against the conclusion of an unfavourable contract, e.g. a sale, and an attempt by dishonest companies to take advantage of such a person's infirmity or illness.

Let us remember that a person who is completely incapacitated does not have legal capacity. This means that a legal act performed by such a person shall be void. In this way, all contracts other than minor ones concluded for day-to-day matters are absolutely invalid and have no legal effect if entered into by a person who is totally incapacitated.

Who can apply to the court for incapacitation?

With the request to court for incapacitation may occur:

• spouse of the person,
• siblings,
• a legal representative, i.e. a person who, by virtue of a provision of law, may act on behalf of another and with effect for the person he or she represents,
• or relatives in the direct line (grandparents, parents, children grandchildren, great-grandchildren).

Relatives in the direct line are only entitled to apply if the person concerned, not has legal representative.

It is the absolute obligation of the applicant to provide with the application a medical certificate of mental fitnessissued by a psychiatrist or with a mental disability issued by a psychologist, on pain of rejection of the application.

If the above-mentioned documents are not provided, the court may reject the application for incapacitation.

An application for guardianship shall be made to the district court with jurisdiction over the person's place of residenceto whom the application relates. Cases of guardianship are heard by the civil divisions.

When will the court revoke or change the nature of the guardianship?

In the event of improvement of mental state of an incapacitated person, the court may change total guardianship to partial guardianship. In the case of mental deterioration, The court will change partial guardianship to full guardianship. On the other hand, the cessation of the reasons for which the court pronounced the guardianship justifies its revocation. Revocation can also be requested by the incapacitated person himself.

Controversy over the institution of incapacitation

Recently, more and more voices have been raised about the need to abolitions institutions incapacitation in Poland. This is mentioned, for example, in the context of electoral law. Currently, according to the Constitution of the Republic of Poland, persons under plenary or partial guardianship are deprived of the right to elect and the right to participate in a referendum. It seems that such interference with political and civil rights in the case of partially incapacitated persons is unjustified.

Ombudsman proposes to replace the institution of incapacitation with a so-called 'guardianship'. system supported by decision-making. He stresses that in most cases the persons to be incapacitated - are capable of expressing their own will and needs. He also recommended the abolition of guardianship UN Committee on the Rights of Persons with Disabilities.

Summary

That is how, in a nutshell, I have told you today about incapacitation. May we never have to make use of this institution. My warmest greetings to you all and feel free to comment on the subject of incapacitation in the comments. Have you ever encountered a case of an incapacitated person?