In what order can an incompetent citizen be discharged from a psychoneurological boarding school? Guardianship of an incompetent adult citizen

Commentary on Article 52

1. Upon reaching the age of majority, a citizen acquires full civil procedural capacity and has the right to defend his interests in court independently. In addition, a minor can personally exercise his procedural rights and perform procedural duties in court from the time of his marriage or declaration of his full legal capacity (emancipation).

Legal representation is the representation of minor citizens or citizens recognized as incompetent or limited in legal capacity by parents, adoptive parents, guardians, trustees, and other persons on the basis of the right granted to them by federal law.

Legal representation is characterized by the following features: it is the representation of individuals only; These individuals do not have full legal capacity. Depending on age and other circumstances, four groups of persons who do not have full legal capacity in civil proceedings can be distinguished:

1) minors under the age of 14, whose interests are represented in court by their parents, adoptive parents or guardians;

2) minors aged 14 to 18 years, whose interests are represented in court by parents, adoptive parents or trustees. At the same time, by virtue of Part 3 of Art. 37 of the Code of Civil Procedure the court is obliged to involve minors themselves in the cases. Standing apart are cases arising from civil, family, labor, public and other legal relations, in which, in cases provided for by federal law, minors aged 14 to 18 years have the right to personally defend their rights, freedoms and legitimate interests in court. However, the court has the right to involve legal representatives of minors in such cases (Part 4 of Article 37 of the Code of Civil Procedure);

3) persons with limited legal capacity recognized as such by a court decision that has entered into legal force. Civil law also distinguishes persons with limited legal capacity, whose property rights and interests are represented in courts by their trustees. By virtue of Art. 30 of the Civil Code, the court may restrict a citizen’s legal capacity if, due to the abuse of alcoholic beverages or drugs, he puts his family in a difficult financial situation. Persons with limited legal capacity independently bear property liability for completed transactions and for damage caused. They have the right to make small everyday transactions, but they can make other transactions, receive earnings, pensions, and other income and dispose of them only with the consent of the trustee. This determines the participation of a representative in court: the representation of their interests is carried out by a trustee. However, the court is obliged to involve citizens with limited legal capacity in cases (part 3 of article 37 of the Code of Civil Procedure);

4) incompetent citizens recognized by the court as such by a decision that has entered into legal force. In addition to minors who are incompetent due to their age, incompetent citizens also include citizens who, due to a mental disorder, cannot understand the meaning of their actions or manage them and are recognized as such by the court. Guardianship is established over them, their interests are represented by a guardian.

Part 1 of the commented article, in addition to parents, adoptive parents, guardians, trustees, also talks about the right of other persons to represent the interests of minors with limited legal capacity or incompetent citizens.

Such persons include the administration orphanage. If the need for the participation of a legal representative arose before the appointment of a guardian or trustee, then the interests of these persons are represented by the guardianship and trusteeship authorities.

Legal representation in court can also be exercised by the manager of real estate and valuable movable property of a citizen recognized as missing, as well as the executor of a will (clause 3 of Article 1135 of the Civil Code). According to Art. 71 of the MLC, the captain of the ship, by virtue of his official position, is recognized as a representative of the shipowner and cargo owner in relation to transactions necessary in connection with the needs of the ship, cargo or navigation, as well as claims relating to the property entrusted to the captain of the ship, if there are no other representatives of the shipowner or cargo owner on site.

2. Part 2 of the commented article applies to those cases in which a citizen recognized as missing in the prescribed manner must participate. A court decision to recognize a citizen as missing is the basis for the transfer of his property to a person with whom the guardianship and trusteeship authority enters into a trust management agreement for this property if permanent management of it is necessary. In this regard, in a case in which a citizen recognized as missing in the prescribed manner must participate, the person to whom the property of the missing person has been transferred to trust management acts as his representative.

3. Part 3 of the commented article regulates the powers of the legal representative. Firstly, legal representatives, like all representatives, act in the process on behalf of the represented person and in his interests, creating rights and obligations for him. This is the main feature of representation in civil proceedings, regardless of its type (legal, contractual or other representation). Secondly, legal representatives have the right to perform procedural actions with the restrictions provided for by law. If in a contractual representation the principal can stipulate the scope of the rights granted to the representative, then one should hardly expect such actions from citizens who are incompetent or do not have full legal capacity. It is for this reason that the law, in the interests of protecting incapacitated persons and persons with limited legal capacity, establishes restrictions. They are provided for in Art. 37 of the Civil Code, and the court does not have the right to accept the refusal of the legal representative from the claim or his recognition of the claim in a property dispute to which the person under guardianship or trusteeship is a party, if there is no consent of the guardianship and trusteeship authority in the case.

4. Legal representatives may entrust the conduct of a case in court to another person chosen by them as a representative. In such a case, contractual representation will take place. The representative will represent the rights and legitimate interests of a minor, incapacitated or limited in legal capacity citizen. Terms of reference,

transferred to the representative is determined by the legal representative. He has the power to vest a representative with only general or special powers (Article 54 of the Code of Civil Procedure).

The procedure for declaring a citizen incompetent

The basis for declaring a citizen incompetent will be statement of claim to the court filed by parents (if the citizen is a minor), guardians, trustees, with evidence presented that the person cannot adequately make decisions.

If this citizen lives at home, then the case is considered by the district court at his place of residence. If a person is undergoing treatment in a hospital or permanently resides in a social institution, then the case will be under the jurisdiction of the court at the location of these organizations.

The application is drawn up in a certain form and must include the following items:

Name of the judicial authority. If an incompetent citizen is undergoing treatment or permanently resides in a social medical institution, the case is considered by the court at the location of these organizations. If a citizen lives at home, the application is submitted and considered in court at the place of his residence.
Full information about the applicant: last name, first name, patronymic, residential address, name of the organization and its location (if the claim is filed by a social institution).
Full information about the citizen in respect of whom an application is being made to recognize him as incompetent: last name, first name, patronymic, date and place of birth, place of residence, information about the presence of a disability group, diagnosis made by a medical institution.
Evidence of a family relationship between the applicant and a citizen suffering from a mental disorder, or information about the availability of powers to go to court, or information about the availability of rights to go to court (if the application is submitted by an institution for the disabled and similar organizations).
A description of facts indicating that a person cannot independently understand and control his behavior.
A request (not a demand) for the court to declare the citizen incompetent.
List of all attached documents.

The following are provided as an Appendix to the application to the court:

a copy and original of the passport or birth certificate of the citizen who will be declared incompetent;
certificate of family composition;
a certificate confirming the fact of disability (if any);
documents confirming the plaintiff’s family relationship with the citizen declared incompetent;
a copy of the application declaring the citizen incompetent;
other documents that may be required during the trial.

Persons who have the right to file an application for recognition as incompetent:

spouses, other persons living together with a citizen;
parents;
brothers, sisters;
children over 18 years of age;
guardianship service;
institution for permanent residence of disabled people;
psychiatric treatment facility.

A citizen who suffers from a mental disorder does not have the right to independently apply to the court to declare him incompetent.

When going to court, the applicant is exempt from all expenses, with the exception of paying the state fee (in 2016 it is 300 rubles). If, in a trial in the case of declaring a citizen incompetent, the fact of unjustified deprivation of legal capacity is established, the dishonest applicant will bear all legal costs.

After receiving the application in court, a forensic psychiatric examination is scheduled to determine the mental state of the citizen. If the application is accompanied by all necessary documents, such an examination can be carried out in absentia.

An in-person examination is carried out on an outpatient basis, in a courtroom or in a hospital; in this case, in case of evasion of examination, a citizen against whom a case is being conducted to declare him incompetent may be forcibly placed in a psychiatric hospital on the basis of a special court ruling. The duration of a forensic psychiatric examination in a hospital is up to 30 days.

A court hearing to recognize a citizen as incompetent is held in the presence of the applicant, a representative of the guardianship and trusteeship authority, or a representative of the prosecutor's office. A citizen in respect of whom an application for declaring him incompetent is being considered also has the right to be present in the courtroom (in person or his representative on the basis) and express his position on this case.

After the court decision enters into legal force, within 3 days a copy of it is sent to the guardianship and trusteeship authority, where no later than 1 month a guardian is appointed to the person declared incompetent.

How to appeal a decision declaring a citizen incompetent?

The court ruling comes into force 1 month after its adoption. Until this moment, a citizen in respect of whom a positive decision was made to recognize him as incompetent has the right to file an application to appeal this court decision to a higher authority.

In accordance with Article 29 of the Civil Code of the Russian Federation, the court can cancel the decision to recognize a citizen as incompetent and appoint guardianship if sufficient grounds are provided for this (divorce, cessation of the use of alcohol or drugs, etc.). Based on the results of the expert opinion of psychiatrists, the court decides on a new trial and notifies the participants in the process of the time and place of the hearing of the case on canceling the status of an incompetent person and removing guardianship over incompetent persons. The final decision on the abolition of guardianship is made by representatives of the guardianship and trusteeship authorities.

Rights and benefits of citizens declared incompetent

Recognition of a citizen as incompetent preserves his right to protect his rights and legitimate interests. Russian legislation provides this category of citizens with protection from discrimination regarding their mental disorders, as well as the right to appeal to government bodies authorities with complaints and statements.

Citizens recognized as incompetent have the right to social services, to preserve and improve their health. The Housing Code of the Russian Federation provides for the preservation of incompetent citizens' right to housing during their stay in a hospital for treatment, as well as to receive additional living space out of turn and.

According to Art. 29 of the Civil Code of the Russian Federation, any civil transactions on behalf of an incapacitated citizen have the right to be carried out by their guardians and trustees. Responsibility for the unlawful actions of an incompetent person rests with the guardian/trustee, who is also obliged to compensate for the damage caused by the incompetent citizen.

If a citizen is recognized as having limited legal capacity, he is personally responsible for the offenses he has committed.

Guardianship of an incapacitated citizen

Guardianship of an incapacitated or partially capable citizen is appointed on the basis of a court decision. In accordance with Article 35 of the Civil Code of the Russian Federation, a person who has reached the age of majority and has no criminal record for intentionally causing harm to the health and life of people can be designated as a guardian or trustee. When appointing a guardian, the court takes into account the opinion of the ward himself and family relations with the candidate.

Persons deprived parental rights, cannot exercise guardianship over incapacitated citizens.

Civil legislation directly indicates that a person who has assumed the responsibility for guardianship of an incapacitated citizen must take care of his ward and provide him with the necessary care and treatment. In addition, the guardian has the right to make any transactions, including real estate, on behalf of and in the interests of the incapacitated citizen.

Guardianship over citizens recognized as partially capable or incompetent is not assigned if they are placed in medical institutions for treatment or are under supervision in specialized social organizations.

Federal Law No. 67-FZ of April 6, 2011 amended the procedure for discharging incapacitated citizens from psychoneurological institutions for social security provided for in Article 44 of the Law on Psychiatric Care.

The procedure for discharging an incapacitated person from a PNI is determined depending on his mental state and ability to express his will. The extract is made:

1) upon the personal application of a person declared incompetent, in the presence of a conclusion from a medical commission with the participation of a psychiatrist that, for health reasons, such a person is capable of living independently(paragraph two, part 2, article 44);

2) at the request of the legal representative of an incapacitated person, if such person due to his condition is not able to submit a personal application, provided that his legal representative undertakes to provide care and (or) ensure the care of his ward(paragraph four, part 2, article 44 of the Law).

1. Discharge of an incapacitated person based on his personal application. Previously, Part 2 of Article 44 of the Law on Psychiatric Care did not allow not only the right of a person incompetent to submit such an application, but also the very possibility of a person deprived of legal capacity to, in principle, live independently. By changing the procedure for extracting incompetent citizens from the PNI, the legislator thereby made significant adjustments to the legal status of the incompetent citizen, recognizing its constitutional the right to move freely, choose a place of stay and residence(Part 1 of Article 27 of the Constitution of the Russian Federation) without the need to take into account the opinions of his legal representative and the guardianship and trusteeship authority.

Despite all the positivity of such innovations, the procedure for extracting from PNI on the basis provided for in paragraph two of Part 2 of Article 44 of the Law is not properly regulated and does not ensure the incapacitated person’s implementation of the constitutional principles underlying these innovations. It is not clear what is meant in the law by the ability of an incapacitated person to live independently: whether we are talking about the ability of such a person to live alone with the prospect of restoration of legal capacity, in a family or together with a guardian. It is not clear what criteria the medical commission should be guided by: whether it should assess the prospects for a person to live with specific persons and in specific conditions (in terms of meeting the needs and interests of such a person) or whether the commission can limit itself to answering the question about the person’s ability, due to his mental state, to live outside specialized social security institution without considering the possibility of applying less restrictive measures to the person, for example, in the form of semi-permanent social services, providing social services at home, etc.

This norm does not stipulate by whom and at what stage, if the medical commission has a positive conclusion, the issue of candidacy of a guardian and his appointment for the discharged incompetent person will be considered. Since these issues are not regulated by law, it is obvious that they will have to be resolved by the guardianship authorities upon the arrival of the incapacitated person at the new place of residence. In our opinion, the PNI administration must notify the guardianship authority in advance both at the location of the PNI and at the place of intended residence of the incompetent person about the discharge of an incompetent person.

It is not defined in the law whether an incapacitated person has the right to challenge (including outside judicial procedure) conclusion of a medical commission about his inability to live independently. The inability to verify the doctors' conclusion negates the right granted to an incapacitated person to leave the walls of the boarding school on a personal request. An incompetent citizen, as follows from paragraph 3 of part 1 of article 135 and paragraph three of article 222 of the Code of Civil Procedure of the Russian Federation, deprived of rights appeal the actions (inaction) of the PNI administration and other individuals and legal entities judicially.

Important in this regard is the conclusion made by the Constitutional Court of the Russian Federation in the Determination of July 3, 2008 No. 612-O-P on the complaint of Timchenko . The absence of a positive conclusion from a medical commission on the ability of a competent person to live independently cannot in itself be considered as preventing such persons from realizing the constitutional rights guaranteed to them, incl. the right to move freely, choose a place of stay and residence. It cannot be used as a basis for refusing to register those in need of residential premises. The decision of the medical commission on the impossibility of living independently and the decision of the social protection authorities on the refusal to be placed on the waiting list for housing can be appealed to a court of general jurisdiction.

Although this legal position was formulated by the Constitutional Court based on a complaint from a legally competent person, everyone’s right to judicial protection is universal. As stated in Ruling of the Constitutional Court of the Russian Federation of January 19, 2011 No. 114-O-P on Ibragimov’s complaint , the right to judicial protection acts as a procedural guarantee in relation to all other constitutional rights and freedoms (Article 46 of the Constitution of the Russian Federation) and, by virtue of Part 3 of Article 56 of the Constitution of the Russian Federation, is not subject to limitation. The Constitutional Court recognized that the forced placement of incapacitated persons in a penitentiary institution constitutes a restriction of their constitutional rights, incl. the right to freedom of movement, choice of place of stay and residence, and must be exercised through the courts.

As we have already indicated, judicial control should be provided not only for the placement of an incompetent person in a boarding school, but also for the validity of his stay in this institution.

2. Discharge of an incapacitated person at the request of his legal representative. In relation to the issue of the procedure for discharging an incapacitated person at the request of his legal representative (paragraph four of Part 2 of Article 44 of the Law), it is important to keep in mind that the law now allows the guardian to take the ward from the boarding school, even if the guardian himself personally cannot for one reason or another reasons for caring for the ward. The main thing is that the guardian finds the opportunity to provide the necessary care, possibly with the help of third parties.

Attention should also be paid to another legally significant circumstance. Both in the previous and in the new edition of Part 2 of Article 44 of the Law on Psychiatric Care, his legal representative is indicated as the submitter of the application and the person who undertakes to provide care for the incapacitated citizen. At the same time, it is known that the functions of the legal representative of an incompetent person placed in a penitentiary institution, as a rule, are transferred from his guardian (an individual) to the administration of the boarding school. Incapacitated persons who do not have guardians and are placed under the supervision of a penitentiary institution are not assigned guardians at all. The fulfillment of the duties of guardians in accordance with paragraph 4 of Article 35 of the Civil Code of the Russian Federation and Part 5 of Article 11 of the Federal Law “On Guardianship and Trusteeship” is assigned in this case to the PNI.

In this regard, the question arises: how should the rule on discharge from the PNI of an incapacitated person at the request of his legal representative be implemented, if the functions of the legal representative are performed by the boarding school itself, and the vast majority of incompetent persons living in the boarding school do not have guardians?

In the previous version of Part 2 of Article 44 of the Law on Psychiatric Care, the situation was to some extent mitigated by the fact that an incapacitated citizen could be discharged at the request of not only a legal representative, but also relatives who guaranteed care for him. In the new version of this norm, relatives are excluded from the list of possible applicants.

This contradiction in the Law should not, of course, lead to a dead end in deciding the fate of an incapacitated citizen, whom one or another person undertakes to take care of outside the boarding school. The law does not prevent a relative of an incapacitated person (another person) from submitting an application to the guardianship authority in whose territory the PNI is located with a request to appoint him as a guardian with the justification that the transfer of guardianship functions will correspond to the interests of the ward (Article 39 of the Civil Code of the Russian Federation).

This approach is established, for example, in the Regulations on the admission of citizens to inpatient social service institutions of the city of Moscow and payment for inpatient social service services, approved by Decree of the Moscow Government of March 24, 2009 No. 215-PP. It provides as a basis for discharge from the PNI the statement of a citizen applying for guardianship over an incapacitated citizen about the opportunity to provide him with the necessary care and proper living conditions. According to the document, an extract from the PNI of incapacitated persons citizens is carried out on the basis of a decision of the guardianship and trusteeship authority (at the place of their future residence) on the appointment of a guardian and guarantees of providing them with the necessary care and supervision.

Much, of course, depends on the flexibility of the position of the PNI administration, on the informal approach of medical commissions and guardianship authorities, whose conclusions and decisions can be challenged in court by interested parties.

Legal representative- is a representative of minor citizens or citizens recognized as incompetent or limited in legal capacity by parents, adoptive parents, guardians, trustees, and other persons on the basis of the right granted to them by federal law.

1)minors under 14 years of age whose interests are represented in court by parents, adoptive parents or guardians;
2) minors aged 14 to 18 years, whose interests are represented in court by parents, adoptive parents or trustees. At the same time, by virtue of Part 3 of Art. 37 of the Code of Civil Procedure the court is obliged to involve minors themselves in the cases. Standing apart are cases arising from civil, family, labor, public and other legal relations, in which, in cases provided for by federal law, minors aged 14 to 18 years have the right to personally defend their rights, freedoms and legitimate interests in court. However, the court has the right to involve legal representatives of minors in such cases (Part 4 of Article 37 of the Code of Civil Procedure);
3) persons with limited legal capacity recognized as such by a court decision that has entered into legal force. Civil law also distinguishes persons with limited legal capacity, whose property rights and interests are represented in courts by their trustees. By virtue of Art. 30 of the Civil Code, the court may restrict a citizen’s legal capacity if, due to the abuse of alcoholic beverages or drugs, he puts his family in a difficult financial situation. Persons with limited legal capacity independently bear property liability for completed transactions and for damage caused. They have the right to make small everyday transactions, but they can make other transactions, receive earnings, pensions, and other income and dispose of them only with the consent of the trustee. This determines the participation of a representative in court: the representation of their interests is carried out by a trustee. However, the court is obliged to involve citizens with limited legal capacity in cases (part 3 of article 37 of the Code of Civil Procedure);
4) incompetent citizens recognized by the court as such by a decision that has entered into legal force. In addition to minors who are incompetent due to their age, incompetent citizens also include citizens who, due to a mental disorder, cannot understand the meaning of their actions or manage them and are recognized as such by the court. Guardianship is established over them, their interests are represented by a guardian.

Part 1 of Article 52 of the Code of Civil Procedure, in addition to parents, adoptive parents, guardians, and trustees, also speaks of the right of other persons to represent the interests of minors with limited legal capacity or incompetent citizens. Such persons include the administration of the orphanage. If the need for the participation of a legal representative arose before the appointment of a guardian or trustee, then the interests of these persons are represented by the guardianship and trusteeship authorities.

In what order can an incompetent citizen be discharged from a psychoneurological boarding school? Guardianship of an incompetent adult citizen

More on the topic Article 52. Legal representatives:

The procedure for declaring a citizen incompetent

How to appeal a decision declaring a citizen incompetent?

Rights and benefits of citizens declared incompetent

Guardianship of an incapacitated citizen