Deprivation of legal capacity is a sensitive and often emotional issue that is initiated when a person, due to illness, mental disorders, or old age, is no longer able to take care of themselves and their rights. This procedure aims to protect the person, not to punish them – which is why it is important to understand when and how it is initiated.
What does it mean to have legal capacity?
Having legal capacity means that a person can independently make decisions about their rights and obligations – to sign contracts, sell or buy property, file lawsuits, or perform other legal actions. All adult citizens have this capacity, unless the court, in a special procedure, decides otherwise.
When is the deprivation procedure initiated?
The procedure is initiated when it is noticed that a person can no longer rationally take care of themselves, their health, or their property. This most often occurs due to serious illness, dementia, psychiatric disorders, or the consequences of brain injuries. The goal is not to strip away dignity, but protection – both of the person themselves and of their property.
The court may decide to:
- Fully deprive the person of legal capacity – when they are unable to perform any legal actions
- Partially deprive the person of legal capacity – when they need assistance in certain matters, but are capable of everyday actions
Who can initiate the procedure?
The procedure can be initiated by the Center for Social Work, spouse, children, parents, guardian, or the public prosecutor’s office. In practice, it is most often a family member who notices that the person is behaving in a risky manner – giving money to strangers, not recognizing family members, entering into unfavorable contracts, forgetting where they keep money or medication.
What does the procedure look like?
When the procedure is initiated, the court ex officio appoints a court expert – most often a psychiatrist – who conducts an examination and provides a professional opinion on the
person’s mental capacity. The Center for Social Work is also involved, providing an opinion on the person’s condition and functioning.
After that, the court schedules a hearing where family members, the doctor, a representative of the Center, and other persons who have information about the person’s daily life may be heard. The person who is the subject of the procedure is always heard, unless due to their health condition this is not possible.
Case Examples
🔹 Example 1: An elderly woman with dementia no longer recognizes family members, forgets where she lives, and enters into harmful contracts with unknown persons. Her daughter initiates the procedure. The expert confirms that the woman cannot distinguish reality from imagination, and the court fully deprives her of legal capacity and appoints her daughter as guardian.
🔹 Example 2: A man diagnosed with paranoid psychosis refuses therapy, suspects that neighbors are harassing him, and attempts to alienate his apartment. The court, based on the expert’s opinion, decides on partial deprivation – he retains the right to decide on everyday matters but cannot dispose of property without the guardian’s approval.
What does the court’s decision look like?
The court issues a written decision determining:
- whether the person is fully or partially deprived of legal capacity
- which legal actions are prohibited
- who is appointed as guardian (usually the closest family member)
- instructions on the possibility of appeal
The decision is delivered to all participants in the procedure, the Center for Social Work, and is entered into the birth register.
Can a person be declared legally capable again?
Yes. If the person’s condition improves – with the help of therapy, recovery, or environmental support – a proposal can be submitted for the restoration of legal capacity. A new procedure is then conducted with a new expert evaluation and insight into the person’s daily functioning.
The Role of an Attorney in This Procedure
This is one of the most sensitive procedures in the family and social sphere. An attorney is there to:
- prepare the proposal to initiate the procedure
- represent the party before the court
- assist in obtaining documentation and medical findings
- communicate with the Center for Social Work
- file an appeal if the decision is unfair or incomplete
Sometimes the attorney’s task is also to protect a person who is being attempted to be deprived of legal capacity without real reason, for the benefit of other persons.
Deprivation of legal capacity must not be a hasty decision. It is a serious legal and human measure, which should protect the person, not strip them of their dignity. If you suspect that someone close to you is no longer able to make important decisions, it is best to first speak with an attorney and the Center for Social Work.