The mental state of a close person sometimes leads relatives to have to limit his or her legal capacity. How to proceed? Can someone be deprived of their legal capacity completely? And did you know that the law offers other forms of protection, such as a contract of assistance or representation by a household member? The procedure is based on the current legislation of the Civil Code and the Special Proceedings Act.
Legal capacity can only be limited by a court decision.
Czech law does not allow the complete deprivation of legal capacity.
Restriction is used only when a less severe measure (e.g. assistance in decision-making) is not sufficient.
The court always determines the extent of the restriction and usually appoints a guardian.
If you are dealing with the limitation of legal capacity of a family member, you should consult a lawyer. We can help you prepare a petition to the court and explain the whole procedure.
When someone close to you is affected by a mental disorder, it is always difficult to cope. However, in addition to focusing on the illness, mitigating its effects and helping your loved one, you also need to think about practical things. Is he or she able to run his or her affairs at the office, shop at the store, or understand and sign consent for a procedure at the hospital?
If your relative is not independent in these matters, you need to help them and also protect them from harming themselves by, for example, signing for an unfavourable loan. There are several solutions, such as assistance with decision-making or representation by a household member. You should always proceed from the simplest and least restrictive option to those that have a more significant impact on your loved one’s rights.
In practice, proposals to restrict capacity are most commonly encountered in the case of seniors with advanced dementia or those with serious psychiatric disorders. Unfortunately, however, families often come in when a loved one goes into debt or signs unfavorable contracts.
A similar situation was also dealt with by our client – Ludmila Ch. Her mother started signing contracts she did not understand after her health deteriorated and took out several unfavourable loans. The family tried to resolve the situation by agreement, but gradually it became clear that without a legal solution it would be impossible to protect her mother from further problems.
Hint: We have discussed in a separate article what is self-administration and what it means in practice if we limit it.
We can help you protect the safety, property or other interests of a person who is no longer able to act legally on their own. We will also protect you if someone is trying to limit your legal capacity without justification. Contact us and we will discuss with you what your options are for help.
Restriction of legal capacity is considered a last resort. It should only be considered when the other forms of assistance mentioned are not sufficient or your relative in need is not even able to understand their meaning. The court must always decide on the restriction of legal capacity. The court will usually also decide on the appointment of a guardian as part of the proceedings for restriction of legal capacity. The procedure is governed by the Special Court Proceedings Act.
We help families to prepare the proposal so that the court has all the necessary information at the beginning of the proceedings. It often happens that a family without legal assistance presents the court with an overly general description of the situation without specific examples of problematic behaviour or without an up-to-date medical report.
Ludmila first tried to find a less restrictive solution. She consulted on options for decision support and representation by a household member. However, these tools were not enough in their situation because the mother was no longer able to reliably assess the consequences of legal actions.
The first thing to do is to file a petition – most often this is done by a family member (e.g. parents in the case of mentally disabled children who have already turned 18, or conversely children of older parents with incipient Alzheimer’s disease, etc.) or by the facility where the ill person is located. The municipal court of the person whose capacity is at issue has jurisdiction over the proceedings. If the person has been placed in a health institution without his or her consent, the court in whose district the institution is located has jurisdiction.
The petition must comply with the statutory requirements and must describe precisely the factual and legal grounds on which it is considered justified and why the use of less restrictive and less restrictive measures is not sufficient, i.e. what, if any, danger is involved. Medical reports or other evidence should also be attached. The court may, where appropriate, invite supplementary applications or evidence.
Ludmila turned to us to prepare the application. We helped her to gather the necessary documents, in particular medical reports and descriptions of specific situations where the mother acted to her detriment. This information is important for the court, because it has to assess whether the restriction of legal capacity is really necessary.
Tip: The most common diagnoses for which the court seeks to restrict legal capacity are various types of dementia (vascular dementia, Alzheimer’s-related dementia, etc.), schizophrenia and various degrees of mental retardation. Restriction of legal capacity in connection with mental disorders caused by alcohol or drug use is no exception.
The court will then appoint an expert. The key is an expert report drawn up by an expert in psychiatry. This should summarise whether the person under investigation suffers from a mental disorder, whether it is transient or permanent, and whether it may affect his or her voluntary and cognitive abilities. He or she will also assess whether and to what extent the person under investigation is capable of managing his or her property and making decisions.
The judge should then arrange for the person under examination to be questioned. In doing so, he or she shall assess whether the interrogation can be carried out without any harm to the person under examination. If the questioning cannot be carried out at all, the judge must at least see the person being questioned. The questioning should be followed whenever the person concerned so requests.
He may also question the person’s treating doctor or guardian, as the case may be, and may take other appropriate evidence. If, after taking evidence, the judge considers that more lenient and less restrictive measures than those proposed would be sufficient, he may decide in the course of the proceedings, in particular, to approve an assistance agreement, to approve representation by a member of the household or to appoint a guardian.
If that is not the case, it shall then decide how and in what respects the capacity to act is to be restricted, that is to say, it shall, in particular , determine the extent to which the capacity of the person concerned is to be restricted and, where appropriate, the period for which the effects of the restriction are to last. The judgment should therefore list in detail what the person concerned is restricted in – e.g. the ability to conclude contracts, deal with institutions such as banks, post offices, etc., handle cash over CZK 500, vote and stand for election, decide on his or her treatment, etc. The guardian will act for the ward in ordinary matters. However, for some more serious decisions (e.g. regarding larger sums of money) he/she will need the court’s permission.
In our case, the court ultimately decided to limit the guardian’s capacity only in the areas of disposing of property and entering into contracts. He also appointed Ludmila as guardian so that she could help my mother with legal and financial matters.
A petition to revoke or amend a decision which has decided to restrict legal capacity may also be filed by the person whose legal capacity has been restricted. However, if the court has repeatedly refused his application and no improvement in his condition can be expected, the court may decide that he shall not be entitled to that right for a reasonable period, but not exceeding six months from the date of the legal force of the decision.
It is not possible today to completely deprive a person of his or her legal capacity. The new Civil Code has abolished this possibility and provides that it is possible to limit someone’s legal capacity for a maximum of three years. If it is clear that the person’s condition will not improve within this period, the court may restrict the person’s legal capacity for a longer period, but no longer than five years. It is then always necessary to file a new petition and let the court reassess the matter and decide whether and how to let the restriction continue.
Tip: The court may, on the other hand, grant full legal capacity to a minor who has reached the age of 16 and has demonstrated the ability to support himself or herself and to provide for his or her own affairs. It does so on the application of the person and with the consent of the minor’s legal representative. In other cases, the court shall grant the application if, for serious reasons, it is in the interests of the minor.
If there is a restriction of legal capacity, the court then initiates a second procedure, namely guardianship proceedings. In this case, the court with jurisdiction is the court which is conducting the legal capacity proceedings. The two proceedings can be, and usually are, combined into one. Once the guardian has been appointed, the court shall ensure that the guardian properly fulfils his or her duties.
Family members and other close persons have most often acted as guardians in these cases. We are talking about so-called private guardians, of which there are approximately 80 %. They are supplemented by public guardians, where the municipality, homes for the elderly, other types of homes (for people with mental retardation, etc.), for example, take on guardianship. They account for about 20% of all guardians.
From our experience, we know that the courts usually prefer a guardian from the family circle, if possible. However, if there is no suitable person in the family or if a dispute arises between relatives, the municipality is usually appointed guardian.
Tip: The terms guardian and guardianship can sometimes be confused with, for example, foster parent or adoptive parent. There is some similarity, but the basic principle is different. What exactly guardianship consists of and how to become a guardian is discussed in a separate article.
Deprivation of liberty is a legal tool that the court can use in situations where a person is unable to act legally on his or her own due to a mental disorder and there is a need to protect his or her interests. The Czech legal system no longer allows a person to be completely deprived of his or her legal capacity – the court can only restrict it and always only to the extent necessary and for a certain period of time. Before doing so, the court must consider a less restrictive solution, such as assistance with decision-making or representation by a household member. A person who has a legal interest can apply for the restriction of his or her legal capacity, and the court decides on the matter, assessing the person’s state of health and often asking for an expert opinion. If the court orders the restriction of capacity, it usually also appoints a guardian to help protect the rights and property of the person in areas where he or she can no longer act independently. The restriction of legal capacity is not final – the court reviews it periodically and may extend it again or restore it completely if the person’s health improves.
Yes. The court must always determine exactly in what areas a person cannot legally act independently. For example, this may be only in the disposal of property, the conclusion of contracts or the management of money.
The court’s decision can be appealed. If it later turns out that the guardian is not performing his or her function properly, the court can also remove the guardian and appoint another.
No. The guardian can only act to the extent determined by the court. In addition, some major decisions – such as the sale of real estate – may require court approval.
Yes, as long as they do not relate to the area in which he was restricted. The extent of the restriction is always determined by the court in the decision.
The court will usually appoint an expert in psychiatry or psychology. The expert prepares an opinion that assesses the person’s capacity to act legally.
Yes. If there is no suitable person in the family or among the relatives, the court may appoint the municipality as guardian.
The length of the procedure varies depending on the complexity of the case, but usually takes several months. It depends in particular on the preparation of the expert report and the workload of the court.
We can help you protect the safety, property, or other interests of a loved one who is no longer able to act fully legally on his or her own through a motion to limit capacity. We will also protect yourself if someone is trying to limit your legal capacity without justification.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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