Legal Capacity and Guardianship Reform in the Czech Republic Dana Kořínková

Re-codofocation of Civil Law in CR Process launched in 1990ties Based on Austrian-Hungarian Civil Code - in force in CR before 2nd World War Guardianship – very traditional, neglected new approaches, CRPD, national and international documents on disability Governmental proposal was introduced to public for ammendments in 2008 – NGOs took opportunity

Advanced Direction/Living will A will of the person for a future incapacity about – How his/her affairs should be managed – Who will manage his/her affairs – Who will be a guardian The form is – Private document (2 witnesses) or official document (confirmed by registar)

Support in Decision-making Based on agreement between supporter and supported person, can be more supporters Agreement must be approved by a court Supporter can be present, facilitate information, give advice and countersign legal acts Supporter can´t influence inappropriately a decision Not applicable for people with more profound disability – supporter can´t represent a person

Representation by a Family Member Person hasn´t mental capacity Entitled: descendant, ancestor, sibling, spouse, member of household (for 3 years) Representant let a person know he/she will represent him/her, a person can refuse Must be approved by a court

Guardian without Restriction of Legal Capacity Court appoints a gurdian on request of a person whose disability causes difficulties in looking after his property or rights Within a person´s request a court determines the scope of guardian´s competencies Guardian acts with a person or consistently with his/her will

Restriction of Legal Capacity Full guardianship – Will automaticaly change into partial guardianship Partial guardianship – Only in case of a threat of significant harm – Less restrictive measures aren´t sufficient (Principle of subsidiarity and proportionality) – Expires every 3 years, must be reconsidered

Weaknesses of the New Legislation It brings back old fashioned terminology (incompetency) Doesn´t implement CRPD Art. 12 much: – Just some elements of supported DM – Not for people with more profound disability – Very brief, doesn´t provide safegurds – Doesn´t avoid restrictions of legal capacity

autor Thank you Dana Kořínková Sídlo: Na Bateriích 57/505, Praha 6 Kancelář: Karlínské nám. 12, Praha 8 Tel./fax: