Application for recognition of a person as incapacitated is subject to consideration only in separate proceedings and cannot be left without consideration because of a dispute over a right - CivCC of SC

The general rule on leaving an application without consideration in the event of a dispute over a civil right does not apply to cases of declaring an individual incapacitated, since declaring a person incapacitated does not give him or her the opportunity to participate in the process, and his or her interests will be represented in court by a legal representative.

The fact that such a person has an assistant does not indicate a dispute over a right.

This conclusion was reached by the Supreme Court as part of the panel of judges of the Second Judicial Chamber of the Civil Cassation Court.

The daughter and grandson of a man brought an action to have him declared incapable, to establish guardianship and to appoint a guardian.

The court of first instance, with which the court of appeal agreed, dismissed the application on the grounds that the establishment of guardianship in favour of the applicants in this case, when the man has an official assistant who provides him with constant care, indicates the existence of a dispute over rights that cannot be resolved in separate proceedings.

The CivCC of the Supreme Court upheld the cassation appeal of the man's daughter, quashed the judgments and referred the case back to the court of first instance for consideration, reaching the following legal conclusions.

The subject of judicial activity in this case is to determine whether there are grounds for establishing the legal status of a person as incapacitated. A court decision declares a person to be incapacitated as a whole, not in relation to a specific transaction.

In its judgments, the Supreme Court has pointed out that the possibility of a citizen's participation in other civil proceedings depends on the resolution of the issue of his or her legal capacity. Therefore, applications for recognition of a citizen's incapacity are considered separately from other claims in accordance with the procedure provided for in the articles of the Civil Procedure Code of Ukraine. A court may only settle a civil issue of a citizen's incapacity together with a dispute on the right if the dispute arose after the death of the citizen.

As a general rule, if a dispute over a civil right arises during the consideration of a case in special proceedings, the court shall leave the application without consideration and shall inform the interested parties that they have the right to file a lawsuit on general grounds. The above provision does not apply to cases in which a person is declared incapable. This is because the declaration of incapacity does not give the person the opportunity to participate in the proceedings and his or her interests are represented in court by a legal representative. Therefore, when settling a civil dispute where one of the parties is a mentally ill person, that person must be declared incapacitated. The presence of an assistant to the person whose incapacity is being sought does not indicate that there is a dispute about the right.

In these circumstances, the conclusion of the court of first instance, with which the court of appeal agreed, that the application had not been considered was incorrect.

The Resolution of the Supreme Court of 21 August 2024 in case No. 201/1531/23 (proceedings No. 61-6862св24) - https://reyestr.court.gov.ua/Review/121222017.

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.