The Civil Cassation Court of the Supreme Court explains whether it is possible to appoint a guardian for an adult with legal capacity who, for health reasons, is unable to protect his or her rights and fulfil his or her obligations independently

The range of persons to whom a guardian can be appointed is defined in the Civil Code of Ukraine. The Code does not permit the appointment of a guardian for a legally competent adult who, due to health reasons, is incapable of independently protecting their rights and fulfilling their obligations, whether in or out of court. In such cases, the legislator has established the right of the individual to an assistant (Article 78 of the Civil Code of Ukraine).

An application for the establishment of a guardianship and the appointment of a guardian for a legally competent adult who, for health reasons, is unable to protect his or her rights and fulfil his or her obligations on his or her own, shall not be considered in civil proceedings, including separate proceedings.

The Supreme Court as part of the panel of judges of the Civil Cassation Court pointed this out in the case concerning the application for the establishment of guardianship and appointment of a guardian.

The applicant stated that his brother had a second group disability, had been injured and had additional illnesses and therefore required constant care. The applicant looked after his brother and took care of him on a regular basis. At the end of 2022, the applicant was mobilised to the Armed Forces of Ukraine and since then his brother has been looked after by his parents who, due to their advanced age and state of health, are unable to provide permanent care and custody of their son. In the meantime, the applicant is the only person involved in the full-time care of his brother.

In order to ensure permanent care for his brother, the applicant applied to the court for the establishment of guardianship and the appointment of a guardian, referring to the provisions of Article 316 of the Civil Procedure Code of Ukraine (consideration by the court of cases to establish facts of legal significance), i.e. with a request to consider the case in separate proceedings.

The court of first instance, whose decision was upheld by the court of appeal, refused to open proceedings in the case on the grounds that the application was not subject to civil proceedings.

The courts found that the applicant's brother had not been declared incapacitated or partially incapacitated in accordance with the procedure provided for by law; in refusing to open proceedings in the case, the courts considered that the issue of establishing guardianship and appointing a guardian was resolved out of court and that the legal relations in this case were regulated by the Law of Ukraine "On Social Services".

The Civil Cassation Court of the Supreme Court confirmed the operative part of the challenged court decisions, changed the reasoning part of the court decisions and made the following legal conclusions.

In the Civil Code of Ukraine, the legislator has defined the range of persons for whom a guardian may be appointed: a minor, if deprived of parental care; an individual with limited civil capacity. In the Civil Code of Ukraine, the legislator does not permit the appointment of a guardian for a legally competent adult who, due to health reasons, is incapable of independently protecting their rights and fulfilling their obligations, whether in or out of court. In such cases, the legislator has established the right of the individual to an assistant (Article 78 of the Civil Code of Ukraine).

The legislator, both in Article 60 of the Civil Code of Ukraine and in other provisions of the Code, does not provide for the possibility of determining other subjects for whom a guardian may be appointed at the level of a by-law; paragraphs 2.3 and 2.2 of the Rules of Guardianship and Trusteeship approved by the Order of the State Committee of Ukraine for Family and Youth, Ministry of Education of Ukraine, Ministry of Health of Ukraine, Ministry of Labour and Social Policy of Ukraine No. 34/166/131/88 of 26 May 1999 contradict the provisions of the Civil Code of Ukraine and are therefore not applicable.

The Civil Procedure Code of Ukraine provides for a case in which a civil court may appoint a guardian in a separate proceeding: when the civil capacity of an individual is limited (Chapter 2, Section IV of the Civil Procedure Code of Ukraine). The Civil Procedure Code of Ukraine does not contain any other cases in which a civil court may appoint a guardian for an individual in a separate proceeding. Therefore, the phrase "the application is not subject to consideration in civil proceedings" also means that an application for the establishment of guardianship and appointment of a guardian for an adult with legal capacity who, for health reasons, cannot independently protect his or her rights and perform his or her duties, is not subject to consideration in a separate proceeding.

Therefore, the application cannot be considered in a separate proceeding and the courts should have refused to open proceedings on these grounds.

The Resolution of the Supreme Court of 16 November 2023 in case No. 686/15358/23 (proceedings No. 61-13105св23) - https://reyestr.court.gov.ua/Review/115031136.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.