Legal capacity is the ability to acquire various rights or obligations through one’s own actions. To a limited extent, children also have it, but it is acquired in its full extent upon reaching the age of majority. In some cases, however, even an adult cannot be left to take full control of his or her own affairs in his or her own interest. What are these situations and how can they be dealt with?
TheCivil Code states that self-legislation is the capacity to acquire rights and to bind oneself to obligations (i.e. to act legally) by one’s own legal actions. We acquire full legal capacity on our 18th birthday, when we are of legal age and therefore able to enter into any contract, acquire various rights and assume obligations. A minor who has not acquired full legal capacity is capable of legal actions of a nature appropriate to the maturity of his age. Prior to the attainment of majority, full legal capacity is acquired by the court. For example, when a seventeen-year-old teenager decides to go into business and asks the court to grant him or her legal capacity, it is sufficient if he or she demonstrates the ability to support himself or herself and to provide for his or her own affairs. If his or her legal representative agrees with the proposal, the court may grant him or her legal capacity.
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.
However, in the lives of some adults, situations arise in which they are unable to understand the consequences of their legal actions and to understand what ordinary communication at the office or in the shop entails. One way of protecting these people is to limit their legal capacity in certain areas by having a guardian act for them. Complete deprivation of legal capacity is not possible today, and even restrictions must always be temporary and have clear rules.
When your grandmother shows the first signs of dementia, there is no need to restrict her legal capacity straight away. If your grandmother is self-sufficient and can manage normal communication and understands the meaning of it, it may be enough for her to enter into an assistance agreement with a family member. This will give her a supporter who will advise her in difficult situations and, with her grandmother’s consent, will be present during legal negotiations – for example, at the bank, when negotiating the lease on the flat, when changing energy suppliers. The grandmother will not be limited in her legal capacity. There may be more such supporters. The court must approve the assistance agreement. It takes effect on the date the court approves it. If it conflicts with the interests of the sick person, the court will not approve it. The court can also remove the supporter. The supporter should never jeopardise the interests of the supported person by undue influence or enrich himself unjustly at the expense of the supported person.
Another option to help a person who is not fully self-sufficient is to have a household member represent them. Unlike decision-making assistance, a relative does not advise but directly represents the person. However, the representative cannot do anything for the person, the representation covers the usual matters, but cannot, for example, approve some major medical procedures such as operations etc. or handle larger sums of money on behalf of the person represented. He or she can use the represented person’s money to take care of his or her affairs, but he or she can manage the money in the account up to a maximum of the subsistence level (currently CZK 4,620) per month. The representation must also be approved by the court.
The representative may be a descendant, ancestor, sibling, spouse or partner, or a person who has lived in the same household with the represented person for at least three years before the representation arises.
However, the institution of representation is always a voluntary matter on the part of the represented person. He should be given an explanation as to who would represent him and in what way. If he refuses to do so, the representation cannot be established. The court is always obliged to ascertain the opinion of the represented party.
Restriction of legal capacity is considered to be a last resort. It should only be considered when the other forms of assistance mentioned are not sufficient.
Here too, a court decision is necessary. The court must take into account the extent and degree of incapacity to take care of one’s own affairs. It should therefore look at the person’s entire life situation, what assets he or she has and whether they need to be actively managed, whether he or she goes to work, what needs he or she has, what procedures or tasks he or she normally undertakes.
It is always necessary to consider the whole matter from several angles, in particular to obtain the opinion of the expert and the person whose capacity is being decided and to use the method of communication that the person chooses. The person is therefore entitled to choose the type of communication he or she uses, for example, by means of simple reading, aids, pictures, etc. He or she has the right to ask questions about what he or she does not understand and to ask for clarification at any time.
On the other hand, the mere fact that a person has communication limitations or difficulties in understanding cannot be a reason for limiting his or her legal capacity.
From law practice:
Our law firm was contacted by Adriana with concerns about her ailing mother who was suffering from incipient dementia in her advanced age. Although she was able to provide for her daily life, hygiene and meals, she was worse off with more complex legal tasks. Although Adriana’s mother lived in the same house with her, she had a separate doorbell and entrance, so she sometimes became a “victim” of various door-to-door solicitors. Although the old lady’s deteriorated mental state was already evident, this did not prevent various energy distributors, telephone tariffs and other service providers from entering into unfavourable contracts with her. The family thus learned in retrospect from various notices, bills and reminders what they were newly obliged to do. The old lady usually did not remember entering into another contract. Since it was necessary that the old lady should not be able to make such commitments at all, or that they should not be valid, we agreed on a motion to limit her legal capacity. After all, the lady in question, who herself was worried that she was causing her family and herself worry from time to time, agreed to this option. The proposed solution did not restrict her in any way in her everyday life; on the contrary, she was relieved that she could now refer all distributors and providers directly to her daughter. Also, in court, after providing the relevant medical reports and hearing the parties involved, there was no problem with the proposed solution to the situation.
In the judgment, the court may stipulate that she may dispose of only money and property not exceeding CZK 600. This was quite sufficient for small purchases, everything on a larger scale was then arranged by the family.
The restriction of legal capacity is always time-limited and is reviewed again after the expiry of the time limit. Even before the expiry of the time limit, the decision can be reviewed on the application of the person whose legal capacity has been limited.
Tip: What is the situation with the restriction of legal capacity today? Can someone be deprived of their legal capacity completely? And how exactly do the court proceedings for the restriction of legal capacity work? We have addressed these questions in our separate article.
The Civil Code also takes this possibility into account and says that someone who expects to become legally incapacitated – for example, because of advancing mental illness – can determine in advance how his affairs are to be managed or who should be his guardian when the need arises. Such a declaration can either be drawn up by a notary in the form of a notarial deed or at least be witnessed by two witnesses.
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.
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