On Tuesday, 29 November, the Legal Affairs Committee approved the idea to amend the Civil Law with the aim to introduce a new regulation on the legal capacity of persons.
Amendments to the Civil Law will substitute the total legal incapacity concept with a limited legal capacity concept. Thus the legal capacity of a person with mental disability will be limited only to the extent of this person’s inability to be aware of or to control his/her actions. It is intended that by setting forth limited legal capacity, the court will have to determine the extent to which the guardian has to take decisions together with the person under his/her guardianship.
Amendments to the Law are necessary because, to a large extent, the current regulations do not conform to international conventions, and the Constitutional Court has identified several norms of the Civil Law that conflict with the supreme law of the state, indicates Ilma Čepāne, Chairperson of the Legal Affairs Committee. The current Civil Law requires a person with limited capacity to be regarded as totally lacking capacity. Thus this norm restricts the legal capacity of a person in all spheres of life, and a decision declaring a person’s total legal incapacity is not based on each individual person’s degree of capacity.
These amendments will make it possible for the court to review the relevant person’s level of capacity in case he/she has acquired new skills or improved existing ones and thus has increased his/her ability to make decisions independently despite any changes in his/her state of health. The court will be able to reinstate legal capacity if it decides that the relevant person has completely recovered and has regained full legal capacity. The current regulation does not recognise partial legal capacity and does not oblige the court to regularly review its decisions on a person’s legal capacity.
The amendments will revoke several restrictions, including the prohibition for persons with mental disorders to enter into marriage. If the Law is amended, the guardian will be able to marry the ward after the termination of guardianship. The amendments will also set forth that a marriage will be declared annulled not only if one of the spouses is recognised as having limited legal capacity but also if he/she was incapable of understanding the meaning of his/her action.
The amendments will also clarify the wording of several norms incorporated in the Civil Law, including the norm which will set forth that a person has a legal capacity unless the court has decided otherwise. Thus if a person in a state of mental disorder concludes a deal before the court has recognised this person as legally incompetent, this deal will be subject to dispute instead of being regarded as null and void as is the case now.
With regard to enforcement of the new amendments, the guardian will not have to be a spouse or a close relative of the person being placed under guardianship. In such situations, the opinion of the person being placed under the guardianship will have to be taken into account because it is essential to have mutual trust between the ward and the guardian who will act together with him/her or take decisions. Acting on behalf of the ward, the guardian will have to find out the opinion and wishes of the ward, act in his/her best interests, as well as inform the ward on activities that are planned to be conducted. It will be possible to ignore the wishes of the ward if they can result in harming his/her health, life or financial situation.
Amendments to the Civil Law will set forth the rights of a person with limited legal capacity and will clarify terms and several definitions used in the Law, thus eliminating the incompliance of the Civil Law with the Constitution and the UN Convention on the Rights of Persons with Disabilities.
Today the Legal Affairs Committee approved the introduction of amendments in the Law on Orphans’ Courts and the Civil Procedure Law that will be needed as a result of amendments to the Civil Law. Amendments to the Civil Law will still have to be reviewed by the Saeima in three readings. The Committee suggested 22 December 2011 as the deadline for submitting proposals.
Saeima Press service