Chapters of the article
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.
Hint: We have discussed in a separate article what is self-administration and what it means in practice if we limit it.
Does any of your loved ones have a mental condition so severe that their capacity needs to be restricted?
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.
Court proceedings for the restriction of legal capacity
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, and in order to resolve the situation efficiently, a double judicial procedure must be followed, namely the procedure for deprivation of legal capacity and the guardianship procedure. The procedure is governed by the Special Court Proceedings Act.
The application to initiate proceedings
The first step is to file a petition – most often by a family member (e.g. parents of mentally disabled children who have already turned 18, or children of older parents with incipient Alzheimer’s disease, etc.) or the facility where the sick person is staying. 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.
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 respect the person’s capacity is to be limited, that is to say, it shall in particular determine the extent to which the person’s capacity is to be limited and, where appropriate, the period for which the effects of the limitation are to last. The judgement should therefore list in detail what the person is restricted in – e.g. the ability to enter into contracts, deal with institutions such as banks, post offices, etc., handle cash in excess of 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.
A petition filed by the person concerned
The person whose capacity has been limited may also filean application to revoke or amend a decision which has been made to limit his or her capacity. However, if the court has repeatedly refused his or her application and if no improvement in his or her condition can be expected, the court may decide that he or she shall not be entitled to this right for a reasonable period, but not longer than six months from the date of the decision becoming final.
Time-limits for limiting legal capacity
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. Then it is 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.
Appointment of a guardian
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 see that the guardian properly fulfils his or her duties.
The function of guardian in the cases referred to above was most often performed by family members and other close persons. 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.
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.