Guardianship and Human Rights in the Czech Republic Analysis of Law and Policy

I was under guardianship for twenty years. I wasn’t allowed to use my own money, or decide where to live. I wasn’t even allowed to work or vote. I wanted to make my own decisions.

MDAC advances human rights.

We respect the privacy of our clients, so we have chosen models, not clients, to appear in these photographs.

Mental Disability Advocacy Center

Guardianship and Human Rights in the Czech Republic

Analysis of Guardianship Law and Policy 2007  mental disability advocacy center This report is available in English and Czech. and English in available is report This 978-963-87395-8-2 ISBN: reserved. rights All 2007 Center, Advocacy Disability Mental © Copyright content and for any use that may be made of the information contained therein. containedthereinMDAC.solelyCommissionlieswithThe responsibility takes no the for the opinions of the European Commission or other donors. TheResponsibility opinions forexpressed the ininformation this document are the opinions of the authors and may not reflect and In-kindcontributionsfromtheCouncilofEurope. acceded to the European Union on 1st May 2004’; Security) ‘Actions in support of civil society in the Member States which EuropeanThe Commission (Directorate-General Justice, Freedom and The SigridRausingTrust; financial contributionsof: The researchandpublicationofthisreportwasmadepossible throughthegenerous

human rights and guardianship in the czech republic  5 7 16 14 14 16 16 10 10 75 43 13 13 32 32 67 58 12 12 29 77 27 50 26 23 23 26 34 20 24 31 ......

......

......

...... Step one: DeprivationStep one: or Limitation Legal of Capacity Types of Legal of CapacityTypes in the Czech Republic Quality Evidence Providedof to the Court in Incapacity Cases Rights the Adult of After Guardianship is Established Principles Running Throughout Legal Frameworks (Indicator 1) Procedural Rights During Guardianship Proceedings (Indicators 2-7) History Current Law on Incapacitation and Guardianship in the Czech Republic Guardianship of Types in the Czech Republic Necessity Guardianship of and Alternatives (Indicators 26-29) Step two: AppointmentStep two: a Guardian of Obligations of theObligations Guardian of After Guardianship Is Established (Indicators 8-12) (Indicators 18-25) (Indicators 13-17) Czech Republic’s Legal System Czech Republic’s Acknowledgements Method 2.5.1 Two-Step Guardianship/IncapacityTwo-Step Process Guardianship Law in the Czech Republic 2.4.3 2.6.3 2.6.4 2.6.1 2.6.2 Human-Rights Legislation Based Assessment the Czech of Republic’s Introduction Demographic and Social Landscape the Czech of Republic 2.4.1 2.4.2 2.4.4 Guardianship Researching Guardianship Legislative Stage Review one: 1.4.1 Collection Data Stage two: of from the1.4.2 Field 2.6.6 2.5.2 2.6.5 Indicators a Human for Rights-Based Assessment Guardianship of 2.3 1.3 1.4 2.5 2.4 Guardianship in Law and the Policy Czech Republic 2.6 2.1 2.2 1.1 1.2 1.5

2.

Annex Glossary A: Terminology of Annex Summary the B: Indicators of Table

1. Introduction1. Executive SummaryExecutive Recommendations Contents

 mental disability advocacy center human rights and guardianship in the czech republic  2 of which 2 calls of which 1 It is of note that the Czech Czech the that note of is It  It does so by depriving adults It adults does so by depriving  75.

p.

see

Glossary,

the y in

defined

 mmar are

Su e terms v i , art. 12. ut Assembly on 6 December 2006,A/61/611, ref art. 12. Ibid Convention on the Rights of Persons with Disabilities, adopted by the UN General ec These    Republic took an active part in drafting this Convention, Article Article an part in took active drafting this Convention, Republic in its obligation to protect the rights of people under guardianship, indicating that indicating guardianship, under people of rights the protect to obligation its in are: findings these of important most The urgently. required are reforms disabilities disabilities in accordance with international weaknesses standards, result a in series serious deficiencies of throughout Indeed, the main its legislative findingsof thereport legislativereveal that the Czech framework. is Republic failing The outcome of Theoutcome this examination indicates that ofalthough the the Constitution Czech for provides Republic respect for the human rights of people with mental different statutes and regulations. The report therefore examines whether adequate adequate whether examines Thetherefore report andregulations. statutes different required safeguards regulations, and statutes various these in provided are safeguards standards. rights human these respects fully that system legal a ensure to This report offers an analysis of domestic legislation on guardianship, such legislation legislation such guardianship, on legislation domestic of analysis an offers report This being viewed through the lens of current binding human rights standards. This does not exist in butina is legislation form, aof codifiedscattered single number under guardianship of their fundamental human rights and inadequately regulating regulating inadequately and rights human fundamental their of guardianship under guardians. their of responsibilities the combined result is a legislative framework governing mental disability, and guardianship guardianship and disability, mental governing framework legislative a is result combined in which particular, adds to the and vulnerability of social exclusion with people disabilities. and intellectual problems health mental Issues related to disability and guardianship, which affect many thousands of people people of thousands many affect which guardianship, and disability to The related makers. Issues policy Czech for area priority a not currently are Republic, Czech the in on all countries to ensure that people with disabilities have the right to recognition as recognition to right the have disabilities with people that ensure to countries others all with on basis equal an on capacity legal enjoy they that and law the before people life. of aspects all in is particularly timely in view of the recent adoption by the UN General Assembly of of Assembly General UN the by adoption recent the of view in timely particularly is Disabilities. with Persons of Rights the on Convention the rights standards. It is these standards, and the compliance of the Czech Republic with with Republic Czech the of compliance the Czech and the on standards, these is imperatives It moral standards. and rights legal The report. this of that focus report the a form report, that this in them, demonstrated are laws guardianship its amend to Republic Czech Republic. As with a number of other post-communist states, the Czech Republic Republic Czech the the in toguardianship states, relating laws into depth any in look post-communist to first is the report other This of number a with As Republic. Czech human current with line in them bring to laws guardianship its amend to failed has Ex  mental disability advocacy center respect the human rights of people with disabilities in the Czech Republic.This report sets out a series of recommendations designed to improve lawand better local and national organisations. peoplewith mental health problems and with intellectual disabilities, as well as their guardianship laws. This must be done in a waythat actively The Mental Disability Advocacy Center bothgovernmentCzech the urges involves reform to its and respects termination of guardianship expires. flawed procedure, adults, confused, possiblyhave just and traumatized abusiveundetected.goguardiansto Onceplacedunder guardianship through this dutiesare not adequately defined in legislation, potentially permitting their but arrangements,negligent guardianship overseeing and responsibility statutoryfor have making when account intodecisions guardianshipaboutthoseadults.livesoftheGuardianship underagenciesauthoritieslocalof adults of opinions the take to guardians on duty no instance, for is, There guardians.of powersadequately the regulate to failure legislative frameworkAdditional includethe the deficiencies in support in making certain decisions. advance directives, supported decision-making) for people withalternatives guardianshipdisabilitiesreal(forRepublicexample, tonoCzech arethere the inwho need independence promote to guardiansor seek on obligation statutorycommunity-based no is or there Further, available. less arerestrictive living arrangements. Indeed, adult’sconsent, into a social care institution for placed,withoutthe theberest of can his sheor herorguardianship, under placed helife. isadult No appeals an once the Czech Republic may be detained for an incapacity evaluation. MoreGuardianship significantly, contributes to social exclusion. Contrary to international law for by the State once the capacity deprivation procedure is finished.legislation making formal provision for an attorney to be provideddeprivation universally or paidprocedure and the guardianship proceedings,Thus, for example,but an thereadult generallyis hasnothe accompanying‘right’ toprotections,an attorney such duringprotectionsthe capacity can be undermined by a failure to make themCzech effective. guardianship law lacks rigour and quality. Whilst it provides certain procedural family life, to marry, to vote, to associate freely, to access courts, andtions to makeof a will.their human rights. These include a deprivation ofAdultstheir under right guardianship to property,are subject to to a significant,arbitrary and automatic depriva request termination of that guardianship. After that 

UN Resolution 46/119 on the Protection of Persons with Mental Illness and the the and Illness Mental with Persons of Protection the on 46/119 Resolution UN 1991, Principle 5, Medical Examinations. Examinations. Medical 5, Principle 1991, December 17 on Assembly General the by adopted Care, Health Mental of Improvement 1 0 day period the right to request  an adult in 1 5 days to days 5 - human rights and guardianship in the czech republic  8). 1 7). 1 5- 1 , , 13 s Ensure that adults retain the right to make decisions in all in decisions make to right the retain adults that Ensure . . Require use of the least that alternatives restrictive both on i t da n mme Create less restrictive alternatives attorney, to advance directives guardianship, and supported and such assisted asdecision-making (Indicator 26). powers 26). of (Indicator resort last a as only used be guardianship that Require Ensure Ensure that 8). specifies legislation that(Indicator a capacity finding offunctional and incapacity is diagnosis between based link on a demonstrable – access courts access – (Indicators will a make – In partial ensure guardianship, that the judge is (Indicator to entitled capacity list lacks of only adult those light the in where areas obligations decision-making guardian’s the of scope the defines legislation that Ensure 20). (Indicator capacity adult’s the – property – work – life family – marry – vote – associate – have a legal mechanism to take away all of someone’s rights. Legal orders should should orders Legal is to no need there because guardianship rights. encompassing) (all plenary Abolish someone’s of all away take to mechanism legal a have 27). (Indicator needs individual’s the to tailor-made be always under of adults rights of the fundamental deprivation the automatic Abolish to: guardianship o    Specifically: adult. the protect and independence the promote     Maximise autonomy. Maximise Specifically: capacity. functional have they which in life of areas Provide Provide alternatives ec . 2. 2. 1 the report. The four principle recommendations are: are: recommendations principle four The report. the referred to are 29 basic guarantees of a human rights compliant guardianship system system guardianship compliant rights human a of guarantees basic 29 are to so referred here given are They recommendations. specific after parentheses in shown are and of sections main the in given analysis detailed more their to refer can reader the that MDAC makes below a number of recommendations to the Czech government, which which this government, With in mind, landscape. Czech indicators to the change legislative commits the The if to the government standards. recommendations of international number a basic below with makes line MDAC in law the bring would followed if Overall, Overall, this of report thousands many of suggests lives the is that that implication clear The standards. Czech happen international only guardianship will This laws improved. fail significantly be could to Republic Czech meet the in basic people R  mental disability advocacy center 4 3 . .

         process and for as long as the adult is under guardianship. Specifically: meaningfulparticipation inthe guardianship process from the beginning of the proceduresImprove      Specifically: abusePrevent  including access to judicial remedies (Indicator 25). effective complaintsEstablishan guardianship,under adults mechanism for are responsible (Indicator 2 Require guardians periodically to life visit their and speak affecting with (Indicatorthe decisions adults aboutfor consultedwhom they actually are adults Ensure guardian (Indicator Ensure that an adult has the right and opportunity to challenge the appointedappointing a guardian (Indicator when weight due given considered and are adult’s wishes the that Ensure (Indicator 5). Abolish involuntary detention of peopleappeals. (Indicator includingfor hearings, the court representationpurpose at legal of free incapacity of provision assessmentsEnsure guardianship court hearings (Indicator exception) at an (as necessary not adult’s is presence the when identifying andensuring that the adult ispresent and heard at these proceedings. Clearly relatedproceduretheto fordepriving personthehercapacity,orlegalhisof proceedings informationall about to properaccess notificationEnsureand declaring a person incapable (Indicator 2). Define law sufficientlyin clear and specific for bases anfiling application for where they have no such authority. those as well as act,authorityhave toguardianswhere areas Identifythose legally adequately represented. and involved (Indicator fully 27). is adult the which at of guardianship, reviews meaningful and compulsory mandates legislation that Ensure conflicts of interest from servingas guardians (Indicators Establishcriteriaclearly selectingthatforprecludeguardianthe people with judicial finding of deprivation of legalcapacity (Indicator 9). Ensurethatlegislation specifies andthe type quality evidenceof needed for a and psychological reports (Indicators 7 and 8). provisionthat ensures that decisions are made on the basis of current medical judicialgroundsdeterminationafor incapacity.legalof include must This a clear and evaluations incapacity conducting for criteria objective Establish (Indicator 2 restrictiveleastthearrangementsseekliving Requiretoguardians adults for 1 1 9). Rdc te oeta fr bs o aut udr guardianship. under adults of abuse for potential the Reduce . ). . Provide sufficient guarantees of the right of adults to adults of right the of guarantees sufficient Provide . 4 1 ). 2). 3 ). 1 0). 3 ). 1 0 and 11 ). human rights and guardianship in the czech republic  ). ). 4 Establish a procedure for periodic review of guardians’ actions by an objective objective an by actions guardians’ of review periodic for procedure a Establish from received information account to take into be required would that body the and adult, which the for hold would all guardian accountable decisions 2 (Indicator  strengthening the protection of the human rights and interests of the adults who live live who adults the of interests and rights human the of protection the strengthening and to cooperating engaging forward looks MDAC guardianship. under lives their reform. implement and plan they as society civil and authorities Czech the with MDAC MDAC believes that of implementation these would recommendations produce in significant improvement the quality of Czech law regarding guardianship by 10 mental disability advocacy center 1.1 the guardian has both decision-making authority over the adult and an obligationorder. Generally,court by or to guardian’slaw defined specific either by authority is administrativeauthority) thenappoints guardian.Theanotherthe personas actto ofsuch findings could that be the person‘legally is incapacitated’. or completely lack capacity to make decisions on his or her own behalf.court The and administrativeoutcome processes, during which an adult is found to eitherGuardianship partially isusually established through court proceedings, or acombination of or profound physical or sensory disability. healthproblem (psycho-social disability), intellectual disability, degenerative disease whoaredeemed incapable ofmanaging their personal as result affairs a of mentala jurisdictionin the world and is widely accepted asameans of protecting individuals behalf. makepersonal decisions andthe person appointed tomake decisions on that adult’s courtprocess between adultan who isdeemed to lack the requisite legal capacity to relationshipchildren. forlegal MDAC defines established a a ‘guardianship’ as by This report concernsguardianship of adultsand does not deal with legalarrangements 1. guardians and have an efficient accountability system. adult.Therefore,the of actionseffective guardianship of systems oversee must the toprotect orfrom decisionsmaking thatarecontrary tothedesires and/or interests and neglect of the adult can result from a guardian failing to carry out the obligationbasic decisions as well as the right to exercise other fundamentalcases humanadults rights.who Abuseare placed under guardianship lose theirmany in revealedthatrightcountriesseveral hasMDAC in status. out researchcarriedto make even the most Guardianshipprofoundahas effect the on lives those of placed under its protective conscientiousness. depends on certain personal qualities of the guardian, such as his orprotect her thediligence adult’s and welfare. The effectiveness of guardianship as an institution heavily

  Throughout

Guardianship I NT The English language terminology used throughout this report was arrived at after much much after at arrived was report this throughout used terminology language English The act on one’s own behalf, such as, for instance, ‘incapable’ or ‘incompetent’. Some laws laws Some provide ‘incompetent’. or ‘incapable’ instance, for as, such behalf, own one’s on act in A. Annex found be can terms of glossary brief a reports, Tothese in languages. terminology the other understand in reader the debates help similar are already or be, will there Presumably, debate. at  The legal mechanism of guardianship exists in some form in almost every some in guardianship form mechanismin legal exists The of

p. R

75. O

for

D Different

U

a this

finding C

T report, I

jurisdictions ON

of

partial MDAC

or

uses use

limited

different the

term legal

terminology ‘legal

capacity.

capacity’,

to

define

as

defined

the 

The court (oran legal

in

the

inability

Glossary

to human rights and guardianship in the czech republic 11 uate due process process due uate decision-making.

supported

http://www.worldenable.net/rights/adhoc3meet_ of

definition

a

for

75

p.

at .

In a small number of jurisdictions, such as in Canada and the UK, the and Canada in as such jurisdictions, of number small a In m  Glossary

the

As a result, legislators and As courts see in the a these guardianship countries legislators result,  States Parties shall ensure that all measures that relate to the exercise of legal of exercise the to relate that all that measures shall ensure Parties States Guardianship, August 1992, available at: guardianship.ht to own or inherit property, to control their own financial have own their to affairs control and to property, inherit or own to equal access to bank loans, mortgages and other forms of financial credit, of arbitrarily disabilitiesdeprived withshallnot personsare andthat ensure their property. for the shortest time possible and are subject to regular review by a competent, competent, a by review regular to subject are and possible time shortest the for be shall safeguards The body. judicial or authority impartial and independent rights to measures the to such which affectdegree person’s the proportional interests. and appropriate all take shall Parties States article, this of provisions the to Subject andeffective measures ensure to equalthe persons of right with disabilities States Parties shall recognize that persons with disabilities enjoy legal capacity capacity legal enjoy disabilities with persons that recognize shall Parties States in abuse safeguards prevent and effective to appropriate for provide capacity ensure shall safeguards Such law. rights human international with accordance that measures relating to the exercise of legal capacity respect are free willof the ofand the of person, conflictundue interest and preferences rights, apply circumstances, person’s to the tailored and proportional are influence, everywhere as persons before the law. law. the before persons as everywhere life. of aspects all in others with basis with equal an on persons by access provide to measures appropriate take shall Parties States capacity. legal their exercising in require may they support the to disabilities Canadian Association for Community Living (CACL) report. Task Force on Alternativesto onForce AssociationTask Communityreport.(CACL)LivingCanadianfor States Parties reaffirm that persons with disabilities have the right to recognition recognition to right the have disabilities with persons that reaffirm Parties States

. . . 5. 2. 3 4 1 See   2 which states: states: which 2 Equal recognition before the law the before recognition Equal Guardianship Guardianship has at long last been recognised as a pressing issue internationally. In on the the Convention Nations newly RightsUnited adopted Article of in with Persons with dealt specifically is capacity legal Convention) (Disability Disabilities 1 model as a last resort that is to be used only after all other less restrictive measures of of measures restrictive less other all after only used be to is that resort last a as model exhausted. been have protection and support guardianship laws have been reformed, and other means of providing protection and and protection providing of decision- means other and supported reformed, been notably have laws emerged, guardianship have disabilities mental with people to assistance making. is coming under increased criticism for its failures in providing adeq providing in failures its for criticism increased under coming is of right the ensuring and guardianship administering and establishing in protections self-determination. As the global disability rights movement gains momentum, the guardianship model model guardianship the momentum, gains movement rights disability global As the 12 mental disability advocacy center started research in an additional four countries: Croatia, thefocused onCzechfour countries: Republic,Bulgaria, Hungary, SerbiaGeorgia andRussia. 2006,MDAC In structure of guardianship systems in a numberMDAC200guardianshiplateitsstartedresearch in of countries. The firstpart of the project include observations on how the guardianship legislativesystem functions analysis, in which practice. will be followed in 2007 byproject a comprehensive examines the report actual practicesthat will in the fieldlegislative of guardianship.regimes. Additionally, This reportbecause presentslegislation a andreality initiated frequently itsguardianship diverge, project the toidentify thestrengths andweaknesses ofexisting rights standards. To highlight guardianship as ascountries an area continue in need to ofbring urgent their legislationreform,relatively inMDAC conformity unchanged with internationalfor decades. countries remained MDAC guardianship have works, where the human laws of However, many In they are likely to undergo substantial reform 1. will influence boththe directionand speed ofthis paradigm shift. Article andlaws which willmake the provisions of the Disability Convention, and those in human rights of those under guardianship, towards the adoption of national policiesMDAC’s call for an immediate paradigm Furthe guardianship. shift implicate away directly from provisions theThese arbitrary removal of the Smorgunova (Russia), and Vida Dadalauri Nina Republic), (Hungary),(Georgia), Kaderják Dániel (Czech Benešová Zuzana (Croatia), Sardelić Petar participatedinthe editorial process. The researchers were Slavka Kukova (Bulgaria), conducted all of the in-country research, Researchwrote was carried theout byfirst lawyers draftsfrom eachof ofthe the target country countries. reports The researchersand 1. ongoing, and it will provide information about how guardianship systemslegislation.theexplainedreport referwork.toonly stillabove,practice researchAs onis notstatisticalisa survey, butrather comparative a legalanalysis. The resultsthis in it as particularly morereport true questionsraiseis answers.maythisitThis than withmany research projects that serve asthe first exploration of uncharted territory, law, standards and best practices, in order to highlight any nationalareas guardianshipin needlegislation of inthese reform.countries with internationalAs human rights andKyrgyzstan. theaim The of research examineis to the degree complianceof of 2 3 

Researching Guardianship Guardianship Researching Acknowledgements Dániel Kaderják also served as project assistant. He is a senior law student. law senior a is He assistant. project as served also Kaderják Dániel 1 2 in particular,in2 reality.a It isMDAC’s wish, andintention, thatthisreport n Hadži-Vidanović (Serbia).  ee Dsabkv (Kyrgyzstan), Anna Dastanbekov Meder 4 by examining the legislativetheexaminingby te ad rdne to credence add they r human rights and guardianship in the czech republic 13 study of study 10 de de jure , long before the guardianship project field research began, began, research field project guardianship the before long , 3 ‘Ofright; legitimate, lawful; by right and just Black’s title.’ Law Dictionary 4th ed. (West 1951). Stage one: Legislative Review

Method

guardianship process; guardianship Studying the legal procedures for obtaining or terminating guardianship and the the and guardianship terminating or obtaining for procedures legal the Studying procedures; such to parties the of rights proceedings; guardianship in standards evidentiary the Examining the rights of Documenting the the alleged to person lack throughout capacity Norway; Dr. Krassimir Kanev, and Chairman, Ireland; Bulgaria; Dublin, Bulgarian Liberties, Civil for Council Helsinki Irish Director, UK. Committee, Kelly, London, Mark Sofia, Mr. Economics, of School London Law, of Professor Peay, Jill Dr. Dr. Robert M. Gordon, Director and Professor, School of Criminology, Simon Simon of Criminology, School and Professor, Director M. Gordon, Robert Dr. Canada; Vancouver, University, Fraser Dr. Georg of Professor Høyer, of Community University Medicine, Tromsø, 10 4    of protective arrangements available under national laws as well as any other relevant relevant other any as well as laws national under available arrangements protective of by: legislation national Stage one of the research, which is represented by this report, is a by this report, is represented which the research, of one Stage types the examines study The applied. are they how than rather texts, legislative the 1. 1.4.1 extensive comments. István Fenyvesi and Oliver Lewis produced the final version. version. final the produced Lewis Oliver and Fenyvesi István comments. extensive background research. research. background provided Kaňka Robert Kosar. David and Benešová Zuzana by drafted was report This Any errors remain solely those of MDAC. MDAC’s former Research and Development Development and Research former MDAC’s MDAC. of those solely remain errors Any two years. over for and this managed project developed Rasmussen Marit Director with helped Tsang Jill and Roche Adams, Nicholas Jill Priscilla Diamond, Interns MDAC would like MDAC to extend its to warmest gratitude the Advisory Guardianship project. this to made have they contributions collective and individual the for Board      contributing their time and expertise. The Guardianship Advisory Board consists of consists Board Advisory Guardianship The expertise. and time their and guardianship contributing health, mental of field the in experts recognised internationally five law: rights human MDAC’s Oliver Lewis gathered a select group of individuals to form the Guardianship Guardianship the form to individuals of group select a gathered Lewis conception, Oliver the in MDAC’s capacity active an in involved been has group This Board. Advisory of design and both stages implementation of the its project, generously members Beginning in February 200 February in Beginning 14 mental disability advocacy center privacy and the capacity of interviewees to understand themental healthproblems purpose intellectualor disabilities,of theconcernsethicalraises aboutresearchthe and includesConductinghaveparticipants,whominterviewsthatresearchof ofsome collection gives an opportunity to capture a snap-shot of guardianship practices.conductdata inmanner and interviews.of files, authority This casehearings,review participate who guardianship those and court observe from cases, follow researchers processes, only guardianship available is information certain Because guardianship agency files. applicablepossible,and observingguardianshipproceedings agencyreviewing and targetcountryobservingby court hearings, reviewing courtand, the extentfiles to Stagefocusestwo ona 1.4.2    of IncapableAdults.’ofRecommendation’s indicatorsFurtherthederived fromwere Ministers’ of Recommendation Committee Europe No. of R(99) Council the namely decision-making, supported and analysed. Throughout the project, MDAC indicatorsused 29 has against which legislation is 1. the conditions of confidentiality surroundingthe information whichthey natureprovide. of participation in the research, the rightThe guidance to sets refuseout standardsparticipation for informing atresearch any‘subjects’ time, aboutand differentthe maintaininginofinformation data locations.rawvoluntary and storeskey and the participantsthe provide.theydatatheand researcherEachnumerical a hassystem issuesthatareraised by aspectthis ofresearch andadoptedhas guidance toprotect givetoinformed consent participateto it.inMDAC carefullyconsiders theethical 5 12 11

Resolving disputes between guardians and people under guardianship. guardians; and they are monitored, as well as the processes, if authoritypowerany,accountabilitytheirandguardians,theAnalysingof how and for bringing complaints against made; been incapacity has of finding a after away taken are rights which Assessing Guardianship Guardianship Indicators for a Human Rights-Based Assessment of of Assessment Rights-Based Human a for Indicators

Stage two: Collection of Data from the Field the from Data of Collection two: Stage See Annex B for a table-summary of all twenty-nine indicators. twenty-nine all of table-summary a for B See Annex Black’s Law Dictionary (West 8th ed. 2004). ed. (West 8th Dictionary Law Black’s ‘Actual; existing in fact; having effect even though not formally or legally recognized.’ recognized.’ legally or formally not though even effect having fact; in existing ‘Actual; 1 2 These indicators come fromthe key document concerningguardianship de factode 11 examination ofguardianship practices within each 4 ‘Principles Concerning the Legal Protection human rights and guardianship in the czech republic 15 - . 3 significant Dictionary

Law

Black’s

Recommendations

the

significant.

. 4 giving

legally

https://wcd.coe.int/ViewDoc.jsp?id=40733 thereby

nonetheless

are

as well as from a review of guardianship legislation in legislation as as well a of guardianship from review 13 binding recommendations,

on

legally

them

by

such as Recommendation No. R(99) No. Recommendation as such strictly

14 on the part of states and is a useful tool for interpretingRecommendations existingof the legallyCommittee bindingof Ministersnorms. of the Council of Europe are however,soft law; the Committee is empowered to ask Member States takento inform it of the action political force. (8th Ed. 2004). Soft law implies a certain degree of political and moral commitment See the full text of the memorandum at ‘Soft law’ refers to rules, recommendations, not guidelines or broad principles that while

13 14 of guardianship systems, MDAC aims to create a means for people to compare and compare to people for a means create to aims MDAC systems, guardianship of countries. different in systems guardianship contrast guardianship systems. Omission of a particular point or issue from an indicator does does indicator an from issue or point particular a of Omission systems. legislative guardianship the in problem a pose not does or important not is analysis issue and the that mean not investigation the standardising By question. in country the of framework straightforward. in byadults faced issues critical dohighlight but exhaustive, not are indicators The MDAC’s indicators capture basic safeguards necessary for a person-centred guard safeguards basic a person-centred necessary capture for indicators MDAC’s ianship system that respects human rights. Thewas intent to keep the indicators relatively simple and concise even where the underlying issues are anything but States of the Council of Europe, there is an expectation that they will comply with its its with comply will they that expectation an is there Europe, of Council the of States law’, ‘soft indicators bearing in mind that, with the exception of Kyrgyzstan, all countries under under its and countries has States Canada. in the MDAC formulated all United Europe, jurisdictions Kyrgyzstan, of exception the with that, mind in bearing indicators onHuman and,Rights asMember Convention European the ratified have review explanatory memorandum, explanatory 16 mental disability advocacy center had Germans (0. 200 ofthe lowest fertility rates in Europe ( The number of inhabitants in the Czech Republic has been falling since Republic itself came to existencein to Republiccameitself Czechs and religious affiliation. The Czech Republic is relativelya small and homogenous country in terms of ethnic 2 Republic joined the Council of Europe in Republic). Czech Slovak The the being state successor otherCzechoslovakia (the Czechoslovakia Austro-Hungarian Empire until Republicnorth.territory of PolandThe Czech the the part and to was eastof the to Slovakia south, the to Austria west, the to neighbours Germany country The The Czech Republic is land-lockeda country located inthe heart of central Europe. 2 mortality rate. the European Union in 200 2 . . .1

2 23 22 21 20 19 18 17 16 15 Czech The Czech Czech 4

1 ). Demographic and Social Landscape of the Czech Republic Republic Czech the of Landscape Social and Demographic G Introduction 0,25 2 According to the 2001 census, 3.7% of the population claimed Moravian nationality, and and nationality, Moravian claimed population the of 3.7% census, 2001 the to According non-believer, or atheist agnostic, is country the of 59% census, 2001 the to According All numbers refer to the 2001 census. For further information see http://www.czso.cz/eng/ see information further For census. to 2001 the refer numbers All nsf/i/basic_facts_on_czech_republic (last visited February 12, 2007). 12, February visited (last nsf/i/basic_facts_on_czech_republic available). Ibid 2001_2006_abs/$File/POHYB01_09_ABS.pdf (lastvisited12February2007). http://www.czso.cz/csu/redakce.nsf/i/pohyb_obyvatelstva_v_ceske_republice_v_letech_ at Statistical Czech also see §11.7; http://www.czso.cz/csu/2006edicniplan.nsf/publ/4032-06-2006, at Ibid 2007). 12, February visited (last czso.cz/eng/edicniplan.nsf/publ/1001-06-2006 2007). 12, February visited (last redakce.nsf/i/population_and_housing_census nationality. Silesian 0.1% Protestant. 2.5% and Catholic Roman 26.8% 1 1 U 7 The year 2006 was the first since (9 ARDIA 1

(at the time of writing this report, only the data for January-September 2006 were were 2006 January-September for data the only report, this writing of time the (at . official ,079inhabitants, 4

4 .2%).The largest minorities are the Slovaks ( Statistics Statistics Statistics %), and the Roma (0. 22 Office, 1 Life expectancy is 72.9 years for men and 79. 5

became part of the communist bloc for the next name N

SHIP LAW A LAW SHIP

Office, Office, Office,

Vital of 1 6

The vast majority of the inhabitants of the Czech Republic are Czechoslovakia Statistics

Basic 1 Total Statistical 4 9 of which 5,002,6 .

facts fertility 1 9 1 of %). 1 N

8. After the communist coup d’état in

the Yearbook on 1

1 D P D varied 1 .22children per woman of reproductive age in 8 99

Czech rate As of Czech 1 3 1 99 O 992, OECD in after peaceful dissolution of the formerdissolutionthe peaceful of after

in according 4 LIC

Republic when the birth rate was higher than the Republic, 31 of European 4

8were men and 5,2 December 2005, the Czech Republic the Y I

Czech

N to between

http://www.czso.cz/eng/redakce.

the countries: t 1 he

Republic .9%),thePoles (0.5%), the regime. 1 995, NATO in 1

years for women. 2001 CZECH REP CZECH 1960-2004, 41

and 2006, years. The Czech 4 8, 1 2006, 99 431

http://www. 4 due to one women. available available 1 1 9 999 and U 4 2 BLIC 8 and 3 20

human rights and guardianship in the czech republic 17 ) 141 ,929 ,929 4 17.

p.

990s, 990s, but in 1 republice,

Ten years later in later years Ten 0 3 70 for children) with 70 for children) 1 České

v 5 social care institutions 5 social care institutions The council went to on went Thecouncil

4 4 2 people. 1 2005

8 4 péči 8,

1 28 09 09 for and adults 1 According to the Ministry of Health, Health, of Ministry the to According dlouhodobé

27 a

In that year 2 were there 6,500 people were long-term residents in the residents social were long-term 6,500 people 1 zdravotní 29 It must be that noted are since there three different

. o 31

4 99 1 zpráva

It is also worthy of mention that most of the institutions ( institutions the of most that mention of worthy also is It 2 26 3 . 4 národní

The Government Council for Human Rights thus urged that ‘given the the ‘given that urged Human thus Rights for Council Government The ...... census nor the relevant ministries have relevant data. The Government 25 1 Ibid Ibid Ibid Ibid Republic in 2002, §4.7.2, p. 43. Ibid Ibid Republic in 2005, §4.7.3, p. 52. GovernmentCzechtheHumanCouncilRightsHumanRights,Statein of forthe Report on GovernmentCzechtheHumanCouncilRightsHumanRights,Statein of forthe Report on there were 279 were there social care ( homes 4 Předběžná

24 25 29 30 31 32 26 27 28 care homes in 200 in homes care 200 includes people who are staying in the facilities for one day or for several weeks. It was was It weeks. several for or day one for facilities the in staying are who people includes that estimated approximately the total capacity the of total capacity 20,897. also number this stay) yearly or weekly (daily, institutions the in placement types of The numbers of people who live in, or receive services from, social care institutions careinstitutions social from, services orreceive in, live who ofpeople numbers The has since been growing jure deprived of their personal freedom’. personal their of deprived jure 2005. in involuntarily hospitalized were patients capacity because this information is not maintained by the Ministry of Justice. Nor Nor Justice. of Ministry the by maintained not is information this because capacity placed are who people of number the on statistics keep Justice of Ministry the does de and facto de are who and year will every their against institution in a healthcare Rights in 2005 to report again that ‘It is not known how many Czech citizens currently currently citizens Czech many how known not is ‘It that again report to 2005 in Rights number the in an increase has been there whether capacity, legal limited or no have legal to reinstate is a there tendency or not or whether commenced, of proceedings course to be tracked’. be to course for Council Human the forcing Government unchanged, remained Guardianship capacity’. persons, ill mentally for consequences their and proceedings of these nature specific their for and statistically monitored be to proceedings these for desirable highly is it with exceptions, also for the protectors of human rights’. also the for protectors with exceptions, of persons legal by the protection on is represented problem proceedings urgent in that a state ‘particularly persons of status procedural the and capacity legal of deprived 2002 still observed that ‘[t]he protection of the rights of persons whose freedom has freedom whose persons of rights the of protection ‘[t]he that observed still 2002 institutional types of various in placed being of – as a result facto de restricted been and, lawyers legislators, public, the for interest peripheral of a matter – remains care (mental health problems) and intellectual disabilities in the Czech Republic. Neither Neither Republic. Czech the in disabilities intellectual and problems) health (mental the 200 Council for Human Rights this in acknowledged problem the late There is a lack of official data on the number of people with psycho-social disabilities disabilities psycho-social with people of number the on data official of lack a is There for people with disabilities with total capacity of of capacity total with disabilities with people for 18 mental disability advocacy center Number of institutions and their capacity are clarified inthe table below. are intended for young people with mental disabilities. ofinstitutions byarerunmunicipal andregional authorities andnon-governmental The Ministry ofLabour and SocialAffairs runs only five institutions. Source: 1 0,0 Youths Youths disabilities combined – Adults T other disabilities other & phys – Adults psychopaths and Psychotics disabilities disabilities disabilities mental – Adults other disabilities other substance abuse substance and alcoholism with Adults disabilities Sensory – Adults disabilities disabilities physical – Adults Youths Youths 36 35 34 33 Main ype of institutions of ype 3 6 beds, of which 8, Website of the of Ministry and Labour Social (last visited http://www.mpsv.cz/cs/9 Affairs, 12 February 2007). February 12 Ibid. Ibid.

Ministry of Labor and Social Affairs, figures for2004 Czech statistical office, figures for 2003

– – – –

source

mental combined phys physical

for

&

these 1

5 figures 3 beds are intended for long-term residents. institutions N

were umber of of umber 141

the 64 13 17 8 5 7 8 3 6

3 data 5

of

the

Czech capacity

10,036 T 5,260 33 1,037

Statistics otal otal They have a totalcapacity of 669 492 727 656 703 188 170 3

Office

from Long stay Long 3 34 6 The majority These figures 8,153 5,010

2003. 264 683 623 395 327 491 170 147 - human rights and guardianship in the czech republic 19 - - - - 93 62 52 35 434 580 357 139 168 1,459 1,283 2006 - 91 49 35 113 529 473 312 180 1,594 1,332 2005 - 90 33 34 115 543 521 314 157 1,508 1,193 2004 - 68 45 95 38 118 378 461 281 1,312 1,086 2003 - 48 37 67 113 462 426 108 254 1,314 1,039 2002 , the number of decisions on legal capacity has not fluctu not has capacity legal on decisions of number the , 4 District courts (okresní soudy)

Judicial decisions in the incapacitation and guardianship proceedings guardian according to the §29 of Civil Code guardian according to the §29 of Civil Code Other decision in proceeding where guardian for proceedings was appointed act on behalf of person under plenary or partial incapacity Other decision about agreement or other legal at on behalf of person under plenary or partial incapacity Judgment of appointing the proceedings Other decision in the restoring of legal capacity Approving the agreement or other legal act on behalf of person under plenary or partial incapacity Not approving the agreement or other legal Judgements where partial incapacity was found Other decision in partial icapacity proceedings Judgements where the legal capacity were restored Type of Type Decision Judgments where plenary incapacity was found Other decision in plenary incapacity proceedings

of the guardian the of

Legal capacity Legal

Appointment Appointment

ian is responsible, and exactly what are the living arrangements of these people. these of arrangements living the are what exactly and responsible, is ian lacks further categorisation, for instance according to the gender, age and diagnosis of of diagnosis and age what gender, the to guardian, according instance institutional for an have categorisation, people further lacks such many how guard guardianship, professional under each whom people for guardianship under people of number average an is ated. Most people are deprived of legal capacity and placed under plenary guardianship. guardianship. plenary under placed and capacity legal of deprived are impos is it people thus and Most 2002, since ated. table the available been only Furthermore, have figures these guardianship. under Unfortunately, people of number total the estimate to sible Only recently, the Ministry of Justice has provided more detailed figures on incapacita on figures detailed more provided has Justice of Ministry the recently, Only (and sudden the for Except below). table the (see proceedings guardianship and tion 200 in increase unexplained) a high proportion of social care institution residents are under guardianship, but no no but guardianship, under are residents institution care social of proportion a high available. are figures entities (including both organisations and individuals). It is generally assumed that a that assumed generally is It individuals). and organisations both (including entities 20 mental disability advocacy center 2 the territorial units: 2. ertra sl-oenet úen smsrv) s elsd n w levels: two on realised is samospráva) self-government (územníTerritorial 1 citizens’. governed by the rule of law, based on respect for the rights and freedomsdefines ofthe man and Czech Republicas a ‘sovereign, unitary,and democratic, law-abiding state years. totalof9,858 beds. children’s psychiatric hospitals (including specialist three hospitals),with 20 and a As for mental health services, in 2005 there were territorial self-governing higher units. so-called the represent which územně-samosprávné celky) (vyšší Regions (2) territorial and self-governing basic units; the areMunicipalities (obce) which of both chambers of the ChamberchambersDeputiesboththeofofofSenate.the and The Czech Republic is a parliamentary republic with a president elected in2 a joint session psychiatric hospitals stayed there longer than one year. hospitals, 60,6 1 . .

days in psychiatricindays departments hospitals.of 3 47 46 45 44 43 42 41 40 39 38 37

the exercisethepublic of authority, whereterritorialthe exercise the in ofunitacts the power of self-administration in certain areas, where the territorial unit remains exercise of assigned public administration). territorial unit acts as a kind of decentralised body of the governmentdetailed (areainstruction issued centraltheofgovernment.by the Exercising function,this publicauthority andofconcrete public competence thusandisobliged toobey administration); freetoadopt legislation itif wishes todo so(area ofindependent powers ofself- 33 Czech Republic’s Legal System System Legal Republic’s Czech 3 8 Constitution, art. 1(1). art. Constitution, National Czech the by adopted Republic, Czech the of Constitution Coll., 1/1993 No. Act Care Psychiatric Republic. Czech the of Statistics and Information Health of Institute Ibid Ibid Ibid 54(2). art. ‘Constitution’), (hereinafter 1992 December 16 on Council Ibid Ibid Ibid Ibid Ibid 2007). February 12 visited (last id=3120&mnu_action=select http://www.uzis.cz/download.php?ctg=10®ion=100&mnu_ at available 13, p. 2005, hospitalizations 2005)in The number of all hospitalisations has increased by increased hospitalisations has all of number The 44 4 Being a unitary state, the Czech Republic delegates two types of powers to , art. 99. art. , 105. art. , 104(3). art. , . . . . . 0 and the average length of stay was 79 days in psychiatricindays hospitals79 wasaverage stay and theoflength and 3

4 7 5 These numbers have remained more or constantless in recent

4 7

3 9 , 69%, ofhospitalisations took place psychiatricin 4 3 6 2 psychiatric departments in hospitals

41 Furthermore, 2.5% patientsof in 4 2

3 43 sne 00 (to 2000 since % The ConstitutionThe

( 1 ) human rights and guardianship in the czech republic 21

56 http:// Czech

, e the

). ). of

3 5

borders

state

is not contained in the 55 the

and ministries and

52 50

(last visited 12 February, 2007). defining 9

4 m

4 5

Council 1

5 The three basic features of the legal system are: are: system legal the of features basic three The 8 4 National

Czech

the

Introduction to the Czech legal system and legal resources onlin resources legal and system legal Czech the to Introduction and

Republic,

, European Union law has become part of the Czech legal order, trumping trumping order, legal Czech the of part become has law Union European , , art. 104(3). , arts. 39-52. , art. 78. , art. 79(3). 4 Only the Constitutional Court is empowered to review the constitutionality constitutionality the review to empowered is Court Constitutional the Only 57 Ibid 44 of the Charter (limitation clauses of certain social, economic and cultural rights). Republic, as well as constitutional acts of the Czech National sixthCouncil of June 1992.’adopted after the Ibid Ibid Ibid www.nyulawglobal.org/globalex/czech_republic.ht this Constitution, the Charter of Fundamental Rights and Basic Freedoms, constitutional acts adopted pursuant to this Constitution, and those constitutionalAssembly acts of of the the National Czechoslovak Republic, Socialist the Federal Assembly of the Czechoslovak Fundamental Rights and Basic Freedoms). Basic and Rights Fundamental parliament. the by ratified treaties International parliament. the by adopted Statutes government the by (adopted legislation Derived entities. self-regulated of acts Legislative Constitution Constitution and other constitutional laws (including the Charter of Act No. 2 /1993 Coll., as amended. Constitution, arts. 3 and 112(1). See e.g.Art. 17 §4 of the Charter (limitations on freedom of expression), Arts.or 41 and Constitution, art. 10. See also Bobek,M.:also See Constitution, art. 112(1): ‘The constitutional order of the Czech Republic is made up of     

55 56 57 50 51 52 53 54 48 49 ) only statutes are recognised as a formal source of law. The most important sources of sources important most The law. of source formal a as recognised are statutes only ) ) principle areas of law and procedure are codified – for example, Civil and Criminal Criminal and Civil example, for – codified are procedure and law of areas principle ) 3 1 The Czech legal system is based upon the civil law system and is heavily influenced by influenced heavily is and system law civil the upon based is system legal Czech The ( of of the review) (abstract and constitutional legislation enshrined decide rights upon fundamental conformity of with courts) (including authorities public of decisions procedure. complaints individual an via Charter the in of rights and freedoms, including social, economic and cultural rights. However, the the However, rights. cultural and economic social, including freedoms, and rights of limitation specific several and clause limitation a general both also includes Charter clauses. Rights Rights and Basic also (hereinafter Freedoms order. ‘Charter’), constitutional the of a part forms that law a separate but itself, Constitution range broad a contains Charter the regimes, rights post-communist other to Similar national law. Thenational law. Czech of catalogue human rights, the Charter of Fundamental in case of procedural norms). The hierarchy of legal regulations adopted and/or approved approved and/or adopted regulations legal of hierarchy The norms). procedural of follows: as case reads in Republic Czech the in authorities national the by sources is hierarchical, forming a pyramidal structure of legal force within the legal system; system; legal the within force legal of structure pyramidal a forming hierarchical, is sources codes procedural or codes called are ones ( complex more (the Parliament of Acts are law the Austrian and German legal culture. legal German and Austrian the legal of system the (2) Procedure; Administrative and Civil Criminal, of Codes Codes,

Since 200 Since 22 mental disability advocacy center has neitherhas ratified nor signed Protocol Consequently, it is true that the party to any judicial proceedings can invoke a invoke can proceedings judicial any to party the that true is Consequently,it applied’.be international agreementshall law,the a toprovision contrary make agreementinternational an ‘should law: the before treaties these the of primacy order’,legal the of part constitutea Republic, shall Czech the on the agreements, international ‘[p]romulgated approved are been binding the which and has Parliament ratification which by of that provides expressly 2002 in As to the legal status of international treaties, the Constitution after its amendment complaints under the Revised European Charter, Social EuropeanSocial Revised Charter. the Rights which guarantees a free-standing right to non-discrimination, nor has it ratified Freedoms (ECHR) ithasratified the Convention for the Protection of HumanRights and FundamentalConvention International– Labor Organization. Rightsof the Child (CRC), Cruel, Inhuman and Degrading TreatmentDiscrimination or Punishmentagainst Women (CEDAW);(CAT); ofRacial Discrimination (CERD); Cultural Rights (ICESCR); (ICCPR); Political Rightsand includingthe following United Nations instruments: International The Czech RepublicCovenant ratifiedon Civil many international human rights treaties and conventions laws remains little more an academicthan debate. before lower courts, and the European Court’s ofthe European interpretationConvention on isHuman hardly ever Rights used inproceedings of national guardianship notioninterpretsConstitutionalbroadly. Courtthis Czech the that and international treaty ‘self-executing’the provision of so-called 71 70 69 68 67 66 65 64 63 62 61 60 59 58

Promulgated under No. 120/1976 Coll.; entered into force for the then Czechoslovakia on on Czechoslovakia then the for force into entered Coll.; 120/1976 No. under Promulgated See Decisions of the Constitutional Court No. Pl. ÚS 31/96 and No. Pl. ÚS 34/02. 34/02. ÚS Pl. No. and 31/96 ÚS Pl. No. Court Constitutional the of Decisions See 10. art. Constitution, No. CETS Complaints, Collective of System a for Providing Charter Social European the to Protocol Additional No. CETS (revised) Charter Social European December, 3 on force into entered Treaties; Intl. Of Coll. 14/2000 No. under Promulgated 1992. 18, March on force into entered Coll.; 209/1992 No. under Promulgated 1965. January, 21 on force into entered Coll.; 465/1990 No. under Promulgated 1991. February, 6 on force into entered Coll.; 104/1991 No. under Promulgated 1988. 6 on August, force into entered Coll.; 143/1988 No. under Promulgated 1982. March, 18 on force into entered Coll.; 62/1987 No. under Promulgated 1969. January, 4 on force into entered Coll.; 95/1974 No. under Promulgated Ibid 1999. Ibid 1976. March, 23 . 1976. March, 23 on force into entered ; 65 and the European Social Charter.

158. 59 6 3 International Convention on the Elimination of All Forms and the Discrimination (Employment and Occupation) 58 International Economic, and Social Covenant on 60 Convention onthe Elimination ofFormsAll of 67 1 o te rtcl hc alw collective allows protocol which the nor 2 to the Europeantheto2 Convention Humanon 6 1

Convention against Torture andOther 163. 163. 6 4 Within the European legal system 66 7 68 1 However, the Czech Republic However, jurisprudencethe

62 Convention on the 69 and stipulates and 70

human rights and guardianship in the czech republic 23

82

that that (as

77 Rusi,

person’

1935 a

obecnému

as občanskému This package package This

transformace, transformace,

76 a a This protection protection This

3 Prague,

7 Podkarpatské

) deprivation of legal ) deprivation v zákoníku

TheCivil Codewas

950. 1 recognized a 79 1

Linhart,

komunismu komunismu

československému

being k

Rusi,

obecnému to

Slovensku

As to the level of legal capacity, it it capacity, legal of level the As to 1 na 8

provided special protection to specific specific to protection special provided Komentář

) both of these together. these of both ) 72 ‘capacity 3

J.:

Podkarpatské platné to

středoevropského středoevropského

v

a not

éře éře

75.

československému

v v právo

k p.

8 years), each with different legal consequences. legal different with each years), 8

Sedláček, and

1 F.,

5, 5, 6. The two-step incapacitation/guardianship process process 6. Theincapacitation/guardianship two-step 1 Slovensku 1

soudcem soudcem 9

občanské 1 Glossary, na

Komentář

úkonům)

a

Rouček,

J.: see

práva práva

see

platné

significantlysimplifying several legal concepts,but still did právním 80

k

právo Sedláček, details,

Aplikace Aplikace občanskému

950, This law lasted with minor amendments until until amendments minor with lasted law This

The form of the special protection was either ( was either protection of special form Thethe F.,

1 4 způsobilost); 78 7

Z., Z.,

(2) appointment of a guardian, or ( or guardian, a of appointment (2) . further

Common Civil Code (Všeobecný občanský zákoník), often referred to as to referred often zákoník), občanský (Všeobecný Code Civil Common 75 občanské

11 (právní a zákoníku Prague, C.H. Beck, 2005, p. 66. Prague, C.H. Beck, 2005, p. 66. reprinted by CODEX Bohemia in 1998, p. 207). Linhart, Prague, 1935, reprinted by CODEX Bohemia in 1998, p. 213. Ibid Act No. 141/1950 Coll. (hereinafter the ‘1950 Civil Code’). 1950 Civil Code, arts. 9-14. Imperial Patent No. 207/1916. The imperial patent No. 946/1811 (hereinafter only ‘ABGB’). ABGB, art. 21. Term ‘legal capacity’ refers to what (způsobilost is known as ‘capacity to undertake acts in law’ History

8 Guardianship Law in the Czech Republic 1 Kühn, For Kühn, Rouček, 80 81 82 77 78 79 73 74 75 76 72 4 . not depart from the continental legal tradition. legal continental the from depart not The communist era downplayed the role of the civil legal relationships and according according and relationships legal civil the of role the downplayed era communist The ‘annihilated legal domestic to one commentator, tradition’. guardian for the former (opatrovník) and ‘temporary sustainer; (prozatimní podpůrce) podpůrce) (prozatimní sustainer; ‘temporary and (opatrovník) former the for guardian latter. the for was introduced only by the ‘Incapacitation Code’ (Řád o zbavení svéprávnosti) zbavení o (Řád Code’ ‘Incapacitation the by only introduced was the of institute the and dichotomy, incapacitation also a plenary/limited introduced squanderers’. capacity, incapacitation/ two-step no was there and decision court a without facto ipso existed until process guardianship extended also to those who were ‘furious, lunatic and simple, who are incapacitated incapacitated are who simple, and lunatic ‘furious, were who those to also extended or are not able to recognize also consequences; those, who were proclaimed as recognized three age groups (6, (6, groups age three recognized unable to manage their affairs due to a permanent mental disability, were deprived deprived were disability, mental permanent a to affairs due manage their to unable As to the incapacitation, people older than older six people As– – adults including and to who were the incapacitation, disabilities or mental health issues, or other specific circumstances. specific other or issues, health mental or disabilities The The Gesetzbuch), bürgerliches (Allgemeines ABGB to manage affairsable toduetheir not were who age,intellectual of people groups 2.4.1 2 amended amended in 24 mental disability advocacy center have the same capacity as teenagers between refer in this report solely to these Codes explicitly stipulated otherwise.Therefore, the terms Code’‘Civil and Civil Procedure’‘Code of from now will on The 2.4.2 demonstrates, report this has as a direct regulation, which, impact and on clarity human of rights. lack a from suffers Republic still theincapacitation were only slightly more extensive. CivilProcedure devoted wholea twoarticles toguardianship. bloc. Civil Code was referred to as ‘the only truly simplifiedrevolutionarythe legal framework regulatingcivil incapacitationcode’ inand guardianship. the Thecommunist new It was the consent of their guardian. capacity acted where in areas they no longer possessed the legal capacity the guardian acted on their behalf, poison,restrictedwere capacity.of legal partially their affairs due to permanent mentaldisability orexcessive use ofalcohol, drugs or six-year-oldchild. legal of framework for the reform of care for persons with mental disorders’.regulatetocarerightsthe personsof withmental disorders createtoorlegislative a Itis also notable that ‘[i]n the Czech Republic, there is no specific law on psychiatric 1 96 96 95 94 93 92 91 90 89 88 87 86 85 84 83

4 Kühn, 92 1 Civil Code did not devote to guardianship only one single clause.

96 Current Law on Incapacitation and Guardianship in the Czech Republic Czech the in Guardianship and Incapacitation on Law Current evn aie o nw tmoay urin’ n ‘collision guardians’, and ‘temporary the guardians’ now for aside Leaving In other areas (i.e. in which they were not incapacitated) they acted without any constraints. Government Council for Human Rights, Report on Report the for of Rights, State in Human Council Rights Human the Czech Government 186-191. arts. Code, Procedure Civil 1963 and 10, art. Code, Civil 1964 See 192-193. arts. Code, Procedure Civil 1963 27(2). art. Code, Civil 1964 Code. Civil Coll., the of 40/1964 No. Act Code. Procedure Civil Coll., the of 99/1963 No. Act. 14. art. Code, Civil 1950 15. art. Code, Civil 1950 Ibid Republic in 2005, §4.7.1, p. 50. p. §4.7.1, 2005, in Republic Vol.48). p. 1965, 41, L.J., Indiana AAppraisal, Poland: General and Czechoslovakia of Codes Civil Communist W., A. New Rudzinski, (quoting 67 p. 2005, Beck, C.H. Prague, Ibid Ibid Ibid capacity. 4 Civil Code and the and CodeCivil , art. 13(1). art. , 13(2). art. , 13(1). art. , . 1 96

Z., 3

Code of Civil Procedure Aplikace 8 3 8 As a result, such people had in fact the same legal positiona legal same as theresult, suchpeoplefact a in had As 4 Furthermore, the Code stated that adults unable to manage manage to unable adults that stated Code theFurthermore,

práva 89

soudcem 1 96 87 3

whereas people partially deprived of their legal Code of Civil Procedure are still valid today.valid stillProcedure Civilareof Code v

éře 90

and středoevropského 1 5 and 1 96 85 4 Such people were considered to Civil Code 95 1 Guardiansip law in the Czech 8 years old.

komunismu 9 4 9 The rules governing 1 which significantly 86 For such people, 96

a

9 transformace, 3 The Code of 88 with the human rights and guardianship in the czech republic 25

1 0 08 1 1

3 0

1 07 1

02 1 but is obliged to do do to obliged is but 05 1 As to the provisions on the

4 97 0 1

00 1

06 1

This amendment remedied the biggest deficiencies of the of deficiencies biggest the remedied amendment This 99 98 and finally finally and 09 1 , art. 187(2). e, art. 187(3). , art. 189(1) (applicable before the Amendment2005 to the Civil Procedure Code). , art. 189. , art. 187(1) (applicable before the Amendment2005 to the Civil Procedure Code). . . . Civil Procedure Code, art. 186(3). Civil Procedure Code, art. 189(1) (applicable before the 2005 Amendment to the Civil Procedure Code). Ibid Ibid Ibid Ibid the Czech Republic in 2005, §4.7.3, pp. 51-52. Ibid Ibid Ibid Ibid to the FamilyAct. amended, andAct No. 85/1996,Act,Attorneys’ as amended; which entered into effect as Augustof 1 2005 (hereinafter the ‘2005Amendment to the Civil Procedure Code’). Except for an amendment to the Civil Procedure Code in 2000 as a result of the amendmentthe result of a as2000 ProcedureCivilin amendmenttheCode anto Except for Act No. 205/2005 Coll., amending Act No. 99/1963, Coll. the Civil Procedure Code, as See also Government Council for Human Rights, Report on the State of Human Rights in

the adult’s opinion with regard to appointment of guardian was strengthened, was guardian of appointment to regard with opinion adult’s the the court is now expressly required to advise the adult whose legal capacity is in is capacity legal whose adult the advise to required expressly now is court the the procedural guardian appointed by the court must be an attorney; an be must court the by appointed guardian procedural the the court no longer has a discretion whether the person concerned will be delivered delivered be will concerned person the whether discretion a has longer no court the the maximum time bar for submitting a repetitive petition for restoring an adult’s adult’s an restoring for petition repetitive a submitting for bar time maximum the was quashed; was disorder. mental delivery in of ‘such his cases his legal capacity on the where removal of the judgment because addressee the on effect unfavourable an have could question about that person’s right to select a representative for the proceedings and and proceedings the for representative a select to right person’s that about question obligations; and rights procedural other about so; requests adult the whenever so weeks; six to months three from reduced was assessment incapacity also the adult is entitled to select his or her own representative for the proceedings, proceedings, the for representative own her or his select to entitled is adult the also and only if he or she fails the a to court itself appoints select a guardian’); representative, ‘procedural (so-called proceedings the for guardian legal legal was capacity (if the expected) court be can has a rejected and petition concerned previous stated that no person the of health mental the of improvement year; one to years three from reduced the court no longer has discretion whether to hear the adult, the hear to whether discretion has longer no court the the court no longer has the discretion to make an order without having a hearing a having without order an make to discretion the has longer no court the the the maximum in period which the may adult be in detained a for an hospital

106 107 108 109 100 101 102 103 104 105 97 98 99

. . . 2. 4 3 8. 1 incapacitation proceedings. The main changes in proceedings on legal capacity can onlegal capacity proceedings inmain The changes proceedings. incapacitation follows: as summarized be guardianship guardianship have remained of Code the to largely amendment the to due untouched. better is slightly situation the incapacitation, 2005. in Procedure Civil Both Both Codes have been amended on numerous occasions, but the on provisions 5. 7. 6. 26 mental disability advocacy center Full deprivation of legal capacity/plenary (all-encompassing) guardianship under guardianship). partial all-encompassing or plenary under guardianship); placed and (2) is partial deprivation adult of legal capacity the (when (when the adult capacity is placed legal of ( incapacitation: of categories two recognizes Code Civil The 2.4.3 procedure will be dealt with in Part 2.5. more detail in the following subchapter and theindiscussed betwo-step substantiveincapacitationwillthethe law guardianship ofinincapacitation/guardianship and guardianship law’ procedure in acts under undertake heading to capacity‘Proceedings to related ‘Proceedingson heading underguardianship’. devotes the specific chapters (albeit still far from being perfect) guardianship,both to incapacitation incapacitation provisions substantive on contains Code Civil the sum, In nature of these acts corresponds to the mental and moral maturity of their stipulatesage’. that ‘[m]inors minors, and possess adults the between capacity only to distinguishes undertake Code only such Civil acts in the lawNowadays if the are met: adultdeprivedmayAn be capacityoflegal followingonlytheif requirementslegal 119 118 117 116 115 114 113 112 111 110    expressly stated in the conclusions of an expert opinion. capabilityofislack capablenot understandingthis of decision iftheonly and thedecision not todeliver judgmenta isnow limited tocaseswhere theadult is addresseesignificancenotthethe ablegraspthe decision’,wastoif or of

Civil Code, art. 10. art. Code, Civil 186-191. arts. Code, Procedure Civil 10. art. Code, Civil Civil the to Amendment 2005 the before (applicable 189(2) art. Code, Procedure Civil Ibid Ibid Ibid Ibid Ibid Ibid author). by added (emphasis Code) Procedure law. duetomentalthis disorder theindividual incapableis ofundertaking actsin this mental disorder is not only temporary; and the adult had a mental disorder; Types of Legal Capacity in the Czech Republic Czech the in Capacity Legal of Types , art. 9. art. , 8-9. arts. , 10(1). art. , 192-193. arts. , 30. and 29 27(2), arts. , 189. art. , 11 7 113 which are very concise. To the contrary, the Code of Civil Procedure 11 6

111

1 fl deprivation full ) 11 5 Thetypology 11 114 11 11 11 2 8 and 0 and and 9 but human rights and guardianship in the czech republic 27 1 2 1 There 22 1 and when 4 2 1 ) it is necessary for the protection of the the of protection the for necessary is it ) 1

23 1 20 1 , art. 10(2) (emphasis added by author). , art. 10(2). , art. 27(2). , art. 27(3). , art. 29. Types of Guardianship in the Czech Republic Ibid Ibid Ibid Ibid Ibid due to this, the adult possesses only limited capacity to undertake acts in law. in acts undertake to capacity and limited only possesses adult the this, to due an adult has a mental disorder; mental a has adult an and temporary; only not is disorder mental this to capacity limited only possesses the due to individual this disorder mental law. in acts undertake an adult consumes beverages, excessively alcoholic narcotics or intoxicants;

     in cases of mental health problems or intellectual disabilities, when: disabilities, intellectual or problems health mental of cases in when: intoxicants, or narcotics alcohol, of consumption excessive of cases in 121 122 123 124 120

. Regular guardianship guardianship Regular . . one of the following conditions is met: either ( either met: is conditions following the of one A special guardian may be appointed when ‘compelling reasons’ exist, reasons’ ‘compelling when A guardian may be special appointed 2. Special (temporary) guardianship guardianship (temporary) Special 2. capacity is taken away but no guardian is appointed. Law prioritises appointing the a appointing that failing Law prioritises or is appointed. guardian no but entity, away is taken legal capacity or individual another or family, adult’s the from guardian authority. local a of office guardianship provides that the ‘legal representative of the person who was deprived of legal capacity capacity legal of deprived was who person the of representative ‘legal the that provides or was legal is by whose capacity limited the a court’. guardian appointed ofIt definition is guardianship. is no thatpossible legal comprehensive an adult’s 1 it namely clause, inone of thismain guardianship form elaborates Civil Code The There are three types of guardianship: guardianship: of types three are There capacity to make decisions is impossible. impossible. is decisions make to capacity 2.4.4 the adult is capable of making independent decisions), since the application does not not does application the since decisions), independent making of capable is adult the a any list provide further raises positive guidance. However, human serious rights list of a Giving all complete concerns. the areas the retains the where person legal The determination of the scope could be both negative (enlisting the areas where the the where areas the (enlisting negative both be could scope the of determination The where areas those (enlisting positive and independently) act to entitled not is person 2. 1 The court shall limit the individual’s legal capacity in two cases: two in capacity legal individual’s the limit shall court The Partial deprivation of legal capacity/partial guardianship guardianship capacity/partial legal of deprivation Partial 28 mental disability advocacy center Secondly, the second category of conflict happens frequentlyconflict Secondly, institutionalofsecond categorybecause the interestsof the guardian and the adult (related primarily to inheritance or property). the conflicts between inevitablytomustlead prioritisingguardians be relatives to appointmentthein conflictguardiansofboth typesinterests of arise. often Firstly, beeninterpreted ratherrestrictively far,so conflict interests of arise. appointedisguardian law,Suchrelationa singlein ofteninact fora which theof A so-called ‘collision guardian’ is appointed when there is a conflict of interests: 3 seen to represent a less restrictive legal instrument than regular guardianship. decision and individualising its decision. adult’san capacity;(2)havelegalcourtswidediscretionandthe formulating in its because( specialnotguardianshipnecessarilybyguardianship,isidentical regular ofthat to specialguardians areused rarely, interestsofthe person concerned; or(2) it isrequired bypublic interest. guardian is limitedis tothe guardian proceedings concerned andautomatically to exist ceases the court’s discretion whether to appoint one or requirenot. compulsory appointment of the procedural guardian. Thus it isfully within notdoproceedings guardianship thatcurious adult,is it theincapacityof alleged entitledsubstantiveanytoundertake onadult’stheacts behalf. be mustnotis andproceedingsrepresents legal adult onlyduringtheproceduralguardian guardianships substantive the that three is difference major The guardianship. procedural the from previous distinguished the previously, noted As of people. guardians or its employees often have guardianship responsibilities over a vast number 4 . Collision guardianship . Procedural guardianship 133 132 131 130 129 128 127 126 125 2. 1

.

betweendifferentthe people under (regular)guardianship (e.g. twobetween between the (regular) guardian and the person under guardianship; or incapacitated people) who are represented by the same guardian. Civil Procedure Code, art. 29(3). art. Code, Procedure Civil 30. art. Code, Civil Ibid Ibid Ibid Ibid Ibid Kaňka, Kaňka, 1 131 ) it) isnot preceded byoften lengthy court procedure todeprive orrestrict , p. 5. p. , 17. p. , 6. p. , . .

R., R.,

Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná ČR v opatrovnictví institutu úprava Současná 1 29 It was reportedterm‘collisionwastheItthat interests’of has 1 26 which iscurious, because the incapacity covered 1 27 13 In sum this form of guardianship may be 0 althoughprevailingdue theto pattern 133 Thefunction ofthe procedural , p. 17. p. , 5. p. , 13 2 Considering the 1 28 1

25 Inreality human rights and guardianship in the czech republic 29

8 2 14 13 144

0 14 aktualizované

2.

, p. 19. which was subject to a was which subject 6 13 judikaturou,

a

7 13 .2). This section applies also to restoring restoring to also applies section This .2). vysvětlivkami 4

.2, the procedure on restoring the legal s

4 such as when the adult complains about the the about complains adult the when as such řád

134 The procedure can be initiated also ex officio. ex also initiated be can procedure The 9 soudní 507.

13 p.

5 2005, 13

Občanský Současná úprava institutu opatrovnictví v ČR

If this does not happen, the proceedings are discontinued. are proceedings the happen, not does this If

141 al.: R.,

and in such case need not be by represented the guardian. Linde, et

143 A.

Kaňka,

Praha,

also , art. 186(2). . , art. 186(3). , art. 22. , art. 32(2). , art. 35(1)(e). , art. 186(1).

wo-Step Legal Capacity/Guardianship Process vydání, Civil Procedure Code, art. 81(1). Civil Procedure Code, arts. 186-191. Ibid Ibid Ibid Ibid Ibid Ibid Ibid

See Winterová, 141 142 143 144 135 136 137 138 139 140 134 5 T . The adult under guardianshipis the only person entitled to request of restoration legal capacity, to request the applicant to submit a report on the mental health of the adult within the the within adult the of health mental the on report a submit to applicant the request to limit. time stipulated discretionary. purely is it – report medical a such require not need court The legal interests might be at stake. at be might interests legal entitled are courts members), family by (e.g. procedure the of abuse prevent to order In Law is vague as to the application of such a procedure, stating that the application ‘may ‘may application the that stating procedure, a such of application the to as proceedings’. vague the is to party Law a also case that in is which facility medical by whose party also any filed by be initiated be may proceedings the that accepted generally thus is It legal capacity. The public prosecutor is entitled to intervene at any stage during the the during atstage any tointervene isentitled prosecutor public The capacity. legal procedure. capacity legal of deprivation the of course This procedure is governed by the Code of acts Civilin to law’, undertake to capacity Procedurerelated under ‘Proceedings the heading 2.5.1 Step one: Deprivation or Limitation of Legal Capacity There are two separate steps for depriving an adult of legal capacity and appointing a appointing and capacity legal of adult an depriving for steps separate two are There guardian. 2 appoint appoint the so-called ‘procedural collision guardian’ when there is a guardian, and conflict adult of between interest guardian. the of services after the appointment of the regular guardian. Exceptionally, the court might also court might the regularthe of guardian. Exceptionally, after appointment the However, However, as noted above in section 2. substantial amendment in 2005 (see Part 2. Part (see 2005 in amendment substantial 30 mental disability advocacy center conclusions of an expert opinion. capable of understanding the decision and (2) this incapacitythecourtmaydecide isnot delivertoexpressly itsjudgment statedtheadultto( if:in the capacity,depriveslegalcourtadultoftherestrictscriteria orandanthe met areIf to be carried out. detained in hospital for a maximum period of six weeks for an incapacity assessment concerned, the courts must always hear an expert. isobliged to hold a hearing. detrimentaltothehealth oftheadult. withoutorbeing all possiblenothearingat holdis whenait to cases adult inthe representative procedural rights. othera and is a serious weakness in the system. The court must tellthe adult ofthe rightthere is noto possibility select for the State to pay for attorneyan selected by the adult –this appointscourttheprocedural aguardian, representative,representative.ownaselect suchnot hisadultdoes the when Only adultAn must be represented during the incapacitation proceedings, and may select the adult thefiling repetitive application. expected. previousapplication, preventedbemaythus subsequent a fromfiling forfrom the to up claim one year capacity is qualified bythe time-bar condition onthe repetitive claims. attorney selected by the court, and not one selected by the adult. court fees. defective expert opinion. There is a procedure to remedy wrong decision, for examplethose based on invalid or 159 158 157 156 155 154 153 152 151 150 149 148 147 146 145

Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid judikaturou, Civil Procedure Code, arts. 187(1) and 191. 191. and 187(1) arts. Code, Procedure Civil Fees. Court on Coll., 549/1991 No. the Act. of 11(1)(h) Art. 186(3). art. Code, Procedure Civil 14 , art. 189. art. , . 187(3). art. , . 187(2). art. , . . 187(1). art. , . . . , 1

58 7 art. Even if presented with positive evidence, the court has discretion to ban In what on the face of it appears wholly unfair, the state pays only for an

190.

1 2. 55

aktualizované See 14

6 only ifno improvement of the adult’s mental be health can also 1 57 Finally, the legal capacity procedure is exempted from the

1 Winterová, 5 3 In order to evaluate the mental capacity of the person

vydání, 1 56

A. 1 Praha, 52

If theIfadult requests toheard,be thecourt et 14

14 8 al.:

9 Linde, who must be an attorney.an mustbewho 1

5 Občanský 1 The court may decide not to hear to not decide may court The 1 5

4 2005, If it is necessary, the adult may be

p. soudní

517.

řád 1 59

1 s

) theadult)not is vysvětlivkami 1 14 50 5 However, The adult

a human rights and guardianship in the czech republic 31 H. The Z.,

1 , 2.

6 There There 1 C.

65

1 4 6 1 Krčmář,

Praha,

4

opatrovnictví

7 1 L.,

The procedure deals deals procedure The institutu předpisy,

70

As mentioned above, above, As mentioned 1 Drápal,

60 1 J., 68 1

, p. 18. úprava

that apply analogously to the the to analogously apply that 72 1 including the adult. the including The abovementioned issues are are issues abovementioned The 3 Bureš, 1 6

7 1 souvisejícími 1

or

a

Současná

Court of The Supreme theformer 66 R., 525, 1

Thecourt is toobliged inform all the p.

62 1 Kaňka,

judikaturou

2005, s

See

řád

Občanský soudní řád s vysvětlivkami a judikaturou Linde,

Code.

that it is not necessary to appoint a procedural guardian guardian procedural a appoint to necessary not is it that soudní

4 Praha, As a general rule the court directly supervises administration administration supervises directly court the rule general a As

3 98 Although this decision is rather old, it is still reproduced in reproduced still is it old, rather is decision this Although 7 1 1 67 1 Procedure

The guardian must then take an oath and promise to perform his his perform to promise and oath an take then must guardian The 69 Současná úprava institutu opatrovnictví v ČR Občanský 1

vydání,

Civil

R.,

M..:

the

18.

of

p.

Kaňka, , art. 180(1). , art. 193(3). , art. 193(1). , art. 29(3). . , art. 192(1). , art. 81(3). , arts. 192-193.

ČR,

v Civil Procedure Code, arts. 176-179 and 180(1). Decision Rc 2/1984/IV. See e.g., Winterová, A. et al.: Civil Procedure Code, art. 193(2). This obligation was often breached since the courts erroneously applied189(2) by analogy art. Civil Procedure Code, art. 35(1)(e). Ibid Ibid Ibid Ibid Beck, 2004, p. 529. Ibid Ibid Ibid Ibid aktualizované Mazanec, See

169 170 160 171 172 173 174 167 168 162 163 164 165 166 161 of the adult’s property and takes measures in order to secure the property. the secure to order in measures takes and property adult’s the of certain acts, and issuing orders to the guardian, etc. guardian, the to minors of orders issuing and acts, custody certain on provisions certain by governed also procedure. guardianship with other issues related to guardianship such as supervision of the guardians, authorising itself. court. the authorising of decision the guardians, orders in the the of follow and supervision properly as guardian such of function guardianship to related issues other with After selecting a guardian, the court must define the scope of rights and duties of the guardian guardian the of duties and rights Procedure. Civil of of Code the on scope commentaries the of the most define must court the guardian, a selecting After to an adult deprived of legal capacity for a guardianship procedure since the adult’s adult’s the since procedure a guardianship for capacity legal of deprived to an adult stake. at not are rights public prosecutor is not entitled to intervene in the guardianship procedure. guardianship the in intervene to entitled not is prosecutor public is no right to or legal a representation procedural guardian. A ‘special guardian’ but this may be is appointed, not obligatory. parties of the appointment of guardian proceedings, guardian of appointment the of parties the of legal capacity, the adult or restricting depriving to the procedure In contrast the Code of Civil Procedure unfortunately devotes only two only to articles this. devotes unfortunately the Code of Civil Procedure without adult each to a that is guardian appointed ensuring for is responsible court but there is legal capacity, no time limit. Following a judgement depriving or restricting the adult of legal capacity, it the is or of adult restricting legal the depriving capacity, a judgement Following of a guardian. appointment to initiate responsibility court’s 2.5.2 Step two: Appointment of a Guardian Czechoslovakia held in in held Czechoslovakia 32 mental disability advocacy center guardian. The third set explores less restrictive alternatives as well as mechanisms as well alternativesas explores restrictive less set third The guardian. legal capacity as well as the corresponding responsibilities and accountability of the deprivationafter adult the of of rights the addresses second set The guardianship. priorplacementadult the to under rights of the addresses set first The majorsets. indicators,remainingthemselves,systems guardianship dividedarelikeinto three indicate also general societal attitudes towards people with mental disabilities. The indicator highlights principles that run throughout the legal framework,first and The countries.which various in laws national provided Ministersfrom are examples practice of best standards, or lawinternational Committee in established clearly been not Europe has assertion of Council R(99) No.Recommendation the and (ECHR) Freedoms standards,such the as European Convention on Human and Fundamental Rights and law rights international from derived human are indicators legislation.These guardianship assess to indicators 29 of series a developed has MDACnoted, As 2 to exceptional property issues. provideperiodic reports. aftertheend of guardianship. analogy with custody on minors) fortheguardian’sAs obligations, heorshemust perform thefunction properly (by they do not explic and Basic Freedoms and other laws provide for the equal treatmentConclusion: for all people, but 2.6.1 rights standards’ relevant to the indicator are given. with it and then an ‘analysis’ of that compliance. Finally, brief followedvery is ‘conclusion’a This by Republic’s examplesCzech the to as of compliance specific ‘human The remaining structure ofthe report isas follows. Each indicator is detailed infull. for review and termination of guardianship once imposed. . 6 Indicator Indicator 178 177 176 175

Republic’s Legislation Republic’s Human-Rights Based Assessment of the Czech Czech the of Assessment Based Human-Rights

Principles Running Throughout Legal Framework (Indicator 1) (Indicator Framework Legal Throughout Running Principles Ibid Ibid Ibid Civil Code, art. 28 (emphasis added by author). by added (emphasis 28 art. Code, Civil . 193(2). art. , 178(1). art. with conjunction in 193(3) art. , The Preamble theto Constitution,the Charter of FundamentalRights 1 itly specify people with mental disabilities. freedom of people with mental disabilities. disabilities. mental with people of freedom fundamental and dignity rights, human the for respect encompasses law the to preamble or purpose Legislative 1 77 Courts maintain unclearan supervisory role with regard 1 1 4 78 76 n dls n lgl aaiy Wee n su or issue an Where capacity. legal and adults on

In addition,In thecourtmay request theguardianto 1 75 and must submit to the court a final balance sheet

human rights and guardianship in the czech republic 33

82 80 1 1 must

provides that that provides 4 freedoms

and

conditions.’

rights

Although disability is Although disability not 1 these 8

1 specified and must preserve the ‘essence ‘essence the preserve must and of

87 1 the

meet

and ‘[t]heir fundamental rights and basic basic and rights fundamental ‘[t]heir and significance 79

1 Court has Therepeatedly Constitutional 4 88 which 8

1 1 and

Any limitation of fundamental rights must be be must rights fundamental of limitation Any of Recommendation No. R(99) No. Recommendation of 85 1 The anti-discrimination law (compatible with with law(compatible The anti-discrimination 1 cases 90

1 all essence

to

the

Principle Principle way and privacy.

3 8 1 same

freedoms,

the

in

basic cannot be discriminatory in nature, in discriminatory be cannot

86 1 and

apply

, art. 4(3): ‘Any statutory limitation upon the fundamental rights and basic freedoms , art. 4(4): ‘In employing the provisions concerning limitations upon the fundamental . , art. 3(1). , art. 5. art., 10(1): ‘Everyone hasthe right todemand that hishuman personaldignity, honor, , art. 10(2): ‘Everyone has the right to be protected from any unauthorized intrusion Pursuant to the Charter of Fundamental Rights, ‘[a]ll people are free, have have free, are people ‘[a]ll Rights, Fundamental of Charter the to Pursuant As clause to the clauses, perhaps the most discrimination comprehensive 89 Civil Code, art. 11. Labour Code,Act No. 262/2006. Decision ÚS 412/04; No. IV. see also Decisions No. I. ÚS 173/06 and III. ÚS 747/2000. Charter, art. 4(2): ‘Limitations may be placed upon the fundamental rights and basic Charter, art. 1. be preserved. Such limitations are not to be which they weremisused laid down’. for purposes other than those for into her private and family life’. freedoms only by law and under the conditions prescribed in this Charter ...’. Ibid Ibid Ibid Ibid Ibid Ibid and good reputation be respected, and that his name be protected’. Ibid must rights 1 In relation In to relation the of a as protection adults, incapable the person each of fundamental principle, dignity the for respect is principles, other all the underlying

189 190 185 186 187 188 180 181 182 183 184 179 respect for the human rights and dignity of people with mental disabilities should should for the respect human and rights with disabilities dignity of mental people law: the throughout permeate been settled. been Standards: Rights Human rights. is in stipulated the Labour Code. has not and finalwording its process is still in law) the legislative Union European and significance’ of the right concerned. right the of significance’ and of personal the for acts Civil protection Code other Several also including provide stressed the importance of human dignity of people deprived of legal capacity and the the and capacity legal of deprived people of dignity human of importance the stressed rights. of interference such of severity law, in based The Charter further provides that has ‘everyone the capacity to possess rights’, human dignity protects explicitly stated in the list of prohibited grounds for discrimination, the list is non- discrimination, for grounds in the stated list of prohibited explicitly fall disability intellectual and health mental that accepted widely is it and exhaustive status’. ‘other term of ambit the within equal dignity, and enjoy equality of rights’, of equality enjoy and dignity, equal and not to subject repeal’. freedoms are non-prescriptible, inalienable, inherent, TheCharter hasclause. a anti-discrimination specific Analysis: 34 mental disability advocacy center mayprove calledfororderin protect to theinterests ofindividuals who,onaccount and fair proceedings. Under European human protections,rights law, these‘special indicators procedural representsafeguards proceedings. national additional provide legislationthe While for well and rights may minimum necessary standards guardianship for in adults indicators procedural addressesof group rights of the dueThis process 2.6.2 establishes the overriding values that disordersshould be isapplied an obligation to implementation of the State,human thisof value Actthe proclaimsandlaw. acknowledging […]’. that the protectionthis principle. of the rights This of preamblepeople with states, ThementalWHO ‘[a]cknowledgingcites the preamble that to themental provisionsPolish health Mental is whenever aHealth fundamental thereProtection is any Act ambiguityrecommends as embodying in this the approach substantive in order provisions to ‘help[…]principles decision. of a drafting The World when Organizationthe Health also (WHO) statute’. courts and others to interpretof humanlegislative rights principles and human dignitystatement will guide thein judiciary the torelevant consider thesestatutes.This principleSuch a mayproclamation be implemented on the recognition in legislation and importanceby the inclusion of a preamble or purpose to support such an application. orrestrict adultan of legal capacity. There is no precise standard of evidence needed Conclusion: legal capacity. Indicators 8 to criticalissue is the quality of evidence that is provided toof theirthe mentalcourt disabilities,in cases examining arenot fully capable ofacting forthemselves’. Indicator 2 Indicator 194 193 192 191

relevant international legal instruments. freedoms, taking into account any qualifications ofthose rights incapablecontained inthe adults shall be based on respect humanbeing. forThe laws, procedures and practicestheir relating the protectionto human of rights and fundamental

Procedural Rights During Guardianship Proceedings (Indicators 2-7) (Indicators Proceedings Guardianship During Rights Procedural 6301/73, judgment 24 October 1979, (A/33) (1979-80) 2 EHRR 387, para. 60. para. 387, EHRR 2 (1979-80) (A/33) 1979, October 24 judgment 6301/73, care to dare Exclusion, Stop 19. p. 2005), Switzerland, Legislation: Geneva, Organization, and (WorldHealth Rights Human Health, Mental on Book Geneva, Organization, Health (World Care 19. to p. 2005), Switzerland, Dare Exclusion, Stop Legislation: and European Court of Human Rights, Winterwerp v. the Netherlands, Application no. no. Application Netherlands, the v. Winterwerp Rights, Human of Court European Resource WHO WHO, in cited as Poland, 1994, M284 Act, Protection Health Mental Rights Human Health, Mental on Book Resource WHO Organization, Health World 1. Principle R(99)4, Recommendation Legislation does not clearly define who may apply to courta to deprive foundation needed to support it. it. support to needed foundation the and guardian a of appointment for application an make may who identifies clearly legislation The 1 2 address these issues. 1 9 1

1 9 3 A preamble such as this 1 9 4 The next 1 92

human rights and guardianship in the czech republic 35

99 202 200 1 sets sets 4 The courts courts The 98 1 . aktualizované 2. , ex officio ex It is thus generally accepted accepted generally thus is It 96 1 Fairness in this context includes the provision provision the includes context this in Fairness Law does not explicitly provide who is entitled entitled is who provide explicitly not does Law 3 95 20 1 507.

p.

This indicator has two principle focuses. The first on focuses. is has principle two Thisindicator 2005,

Občanský soudní řád s vysvětlivkami a judikaturou ) that: ) Linde, 1

( 11 This provision was supposed to prevent the abuse of the incapacitation incapacitation the of abuse the prevent to supposed was provision This Praha, 1

20 . , art. 186(1). An application to deprive an adult of legal capacity and to appoint a guardian guardian a appoint to and capacity legal of adult an deprive to application An In addition, incapacitation procedure can be initiated initiated be can procedure incapacitation addition, In Decision Rc 2/1984 I. Civil Procedure Code, art. 186(2). Civil Procedure Code, art. 35(1)(e). Recommendation No. R(99)4, Principle 5(1). Civil Procedure Code, art. 85(1) in conjunction with art. 88(d). Winterová,A. et al.: Civil Procedure Code, art. 81(1). Ibid Ibid vydání, 97 1 official or body, or by the court or other competent authority on its own motion. own its on authority competent other or court the by or body, or official The list of those entitled to institute proceedings for the taking of measures for the the for measures of taking the for proceedings institute to measures entitled that those ensure to of wide list The sufficiently be should adults incapable of protection in may, It necessary. are they where in all cases can considered be protection of to be by be for to proceedings necessary a particular, initiated provide public

200 201 202 203 195 196 197 198 199 of a law that clearly specifies who can file applications. applications. file can who is specifies it, of clearly face that law the a on of merit some have must application guardianship a that second, The The Recommendation calls for ‘fair and efficient procedures for the taking of measures measures of taking the for procedures efficient and ‘fair for calls Recommendation The adults’. incapable of protection the for out in Principle Principle in out list, or examples, of the prima facie evidence necessary to demonstrate the need for R(99) the need No. to demonstrate necessary evidence facie of the prima or examples, list, Recommendation focus, first the to respect With application. an such Human Rights Standards: Rights Human Standards: application file an may individuals which defines specifically legislation the whether a includes statute the whether on second the and a guardian of appointment the for entitled to intervene at any stage during the course of the incapacitation procedure, incapacitation the of course the during stage any at intervene to entitled safeguard. theoretical additional an adult the giving procedure (e.g. by the family members of the person concerned), but since the request request the since but concerned), person the of members family the is by There loose. (e.g. rather is procedure adult the of protection is the prosecutor obligatory, not public is report The medical of up-to-date. be should report medical the that requirement no hospital, the court may order a medical report on the mental condition of the adult. the of condition mental the on report medical a order may court the hospital, If no are theduring proceedings the period, medical is report specified submitted terminated. who has the capacity to sue and to be sued, which is a remarkably wide definition. wide remarkably a is which sued, be to and sue to capacity the has who or authority local a unless application, an such support to needed foundation the to As that the proceedings may be initiated by any party whose legal interests might be at at be might interests legal party whose any by initiated be may proceedings the that stake. may be anyone that a and hold petitioner broadly of applicant the notion interpret to initiate the procedure to deprive or restrict an adult of legal capacity, stipulating only only stipulating court. district capacity, local legal the of to adult filed an be may restrict or deprive to procedure the initiate to facility. medical a by also filed be may case a such that Analysis: 36 mental disability advocacy center of functional capacity. In the case of necessary in order to protect an adult against malicious accusations of the deprivation requests to be heard, the court must hear the person. where attending the hearing would be detrimental to the adult’sdecidenot tohear theadulthealth. itnot isifpossible tohold hearing case aaorall,at in whose presence is otherwise required, including the adult. people participants all the proceedings all obligedsummon and is to court of The tobenotified the of proceedings not laterthan ten days beforethe court hearing. (dovlastních rukou) thepartiesoftoalltheproceedings. Analysis: and appointment of a guardian. at all proceedings related to the application for deprivationConclusion: of the adult’s legal capacity the applicant in necessary to be submitted with an application, incapacitations expert’. suitably qualified one such as that suffered by 1 producedefects,SlovaktofailedtheCourtsufficient evidence Principlelight of in year old. The court found a violation ofArticle 6( substantiatedand psychiatricaby reporttimehearingtheofatover wasthat a capacity. This procedureapplicationan based on was submitted ex-husbandher by Rights (ECtHR) examined the procedure that led H.F. to the deprivation of her legal o Recommendation of (99) 2 Indicator Indicator 207 206 205 204 209 208

Ibid adult. the of rights procedural the with to obliged not was court the of chairperson the Code, Procedure Civil the of of (1) 189 Art. to Pursuant rule. this to exception an was there Coll.), 205/2005 No. (Act Code Procedure Ibid Available 2005). November France, (8 through Ukraine concerning and Turkey judgments Slovakia, Chamber Poland, Moldova, Registrar, Malta, Rights Release, Human Press of see Summary, Court English an European For French. in available only is judgment the Slovakia v. H.F. Civil Procedure Code, art. 187(2). art. Code, Procedure Civil Civil the of amendment 2005 the Before (18.11.1977). 3/1979 Rc decision Judicial 81(3). and 79(3) arts. Code, Procedure Civil

order The court must deliver the applicationdeliverthe court must The registered hands’by the letter ‘to . §115. , Legislation provides a right to actual notice, and to be present and heard

3 www.cmiskp.echr.coe.int/ech a

hearing H.F. v. Slovakia a guardian. of guardian. a appointment and capacity legal her or his of for deprivation application the to related proceedings all at heard and present be to and of, notice actual to right a has adult An , Application No. 54797/00, judgment 8 November 2005. Note that that Note 2005. November 8 judgment 54797/00, No. Application ,

if

the

hearing 4 20 wih eurs n u-odt rpr fo a least at ‘up-to-date from report an requires which , 4 may be avoided at the outset. When legislation prescribes the form of evidenceoflegislation form prescribesWhenthe

was H.F. v. Slovakia r

, visited 30 July 2006. July 30 visited , ‘not

suitable’. 1 ) because, among other procedural

Such , the European Court of Human 209

provision 207 205 However, the court may The adultthe righthas

was

in

208 deep If the adult

conflict 206

human rights and guardianship in the czech republic 37

5 1 2 11 In other other In 2 1 2 ) the adult is adult the ) appointment ing the adult ing the adult

1 with

reiterates that this this that reiterates 4 dealing

, p. 18. 191-193

6 that the is There no requirement 1 0 2 Arts.

1 2 in

14 2 aspect

13 2 specific

provides that the provides adult must be of informed the 4 this

on including the adult under all circumstances. all under adult the including

11 The right to be present and heard during court proceedings proceedings court during heard and present be to right The 2 provision

Současná úprava institutu opatrovnictví v ČR

no

R., is

there

Kaňka, , art. 189. , art. 81(3).

Council of Europe, Committee of Ministers. Explanatory Memorandum to Recommendationto MemorandumExplanatoryMinisters. of CommitteeEurope, of Council See para. 113(c). The Uniform Guardianship and Protective Proceedings Act (1997) is Note that Principle 11(2) also provides an exception to notice when such ‘would be Laws. The model legislation was also endorsed purposethisuniformbyensureof toprocesswasdue act protection peopleforhavebeenwhothe American Bar Association. The deprivedsubjectlegalcapacityguardianstoofandcourt jurisdiction to throughoutUS; the consequently, its due process provisions may also serve as a model in other jurisdictions. Available at www.nccusl.org, visited 14 July 2006. manifestly without meaning to the person concerned or would present a severe danger to the health of the person concerned.’ R(1999)4 on principles concerning the legal protection of incapableFebruary 1999,adults. para. 52.Adopted 23 model legislation drafted by the National Conference of Commissions on Uniform State Ibid Ibid of a guardian, a contrario general provision, i.e. Art. 81(3) applies.of the Civil Procedure Code

Since See

215 216 210 211 212 213 214 The Explanatory Memorandum to Recommendation No. R(99) No. Recommendation to Memorandum Explanatory The law provides for actual notice. One solution to this is incorporated into the Uniform Uniform the into incorporated is this to solution One notice. actual for provides law requiring provision a adds simply that Act Proceedings Protective and Guardianship language.’ plain in be must Act this under ‘notice Thelanguage used in recognizes that theforPrinciple theconcerned, individuals or the meaning convey not law may the procedure civil by general whether as prescribed is notice applied be to standard the Therefore, proceedings. the of ramifications procedural safeguard is necessary, citing the requirements of Article 6 of the ECHR. the of 6 Article of requirements the citing necessary, is safeguard procedural proceedings, specifying, among others, that this must be done ‘in a language, or by by or ‘in a language, done be must this that others, among specifying, proceedings, understands.’ she or he which means, other Human Rights Standards: Rights Human be to as right the proceedings, the of notice receive to right the to linked is directly Principle notice. actual and meaningful without occur cannot heard and present the courts erroneously apply by analogy the provision on (not) inform (not) on by analogy the provision apply erroneously the courts capacity. legal of deprivation about words, the adult need not be told that he or she has been deprived of legal capacity but but capacity legal of deprived been has she or he that told be not need to adult the obligation the words, Unfortunately, appointed. since been has guardian breached, a that often is told be guardian to a needs of appointment on decision the adult the to deliver However, the court must deliver a judgment on appointment of guardian to all to guardian of the appointment on a judgment deliver must court the However, proceedings, the to parties No. R(99) of Recommendation not capable of understanding the decision and (2) this lack of capability is expressly is expressly capability of lack this (2) and decision the understanding of capable not of an in stated expert opinion. the conclusions language. plain in judgment the deliver to notice The court may decide not to deliver the judgment to the adult when: ( when: adult the to judgment the deliver to not decide may court The 38 mental disability advocacy center In the procedure therights.legal Thereno fewappointIn is adultto guardian,hasthe a the incapacitation procedure is exempted from the court fees. for the proceedings and about other procedural rights and obligations.be attorneys. called ‘procedural guardian’. the state). proceedings. The adult is entitled to selectAnalysis: his or her own representative (not paid for by is no right to legal representation in the procedure to appoint bya guardian. the state. However, the state does not Conclusion:pay for an attorney chosen by the adult. There question, including guardianship issues. trial rights in cases, including those where a person’s civil whichrights couldand obligationsaffect his orare in her legalcapacity’. ‘the person concerned should have the right to be heard in personWith in any respectproceedings to the second element, Recommendation No. R(99) intervene in the guardianship procedure. sincerights of this adult were not at stake. procedural guardian to an adult deprived formerCzechoslovakiaof in legal capacity for a guardianship procedure obligatoryand isseen unnecessary,as aposition taken by the Supreme Court of the chooserepresentative.a The court can appoint a ‘specialguardian’, orother representation, andthe as person now lacks legal capacity, he or she cannot Indicator Indicator 226 225 224 223 222 221 220 219 218 217

Ibid Ibid Ibid 51. para. 1999, July 5 was principle This obligations.’ and rights such of ‘determination’ a to amounted capacity that Mr.of Winterwerp Divesting 1 [...]. 6 para. of Article meaning rights the within obligations’ and ‘civil affects hence and rights private of exercise the involves property one’s with personally deal to capacity ‘[t]he that said Court the which in 387, 2 EHRR (1979) (A/33) Civil Procedure Code, art. 35(1)(e). art. Code, Procedure Civil 2/1984/IV. Rc Decision 29(3). art. Code, Procedure Civil Fees. Court on Coll., 549/1991 No. the Act. of 11(1)(h) Art. 191. art. Code, Procedure Civil See 13. Principle The general rule is that an adult be adultrepresented be an that general The is rule capacity the legal during

. . 187(1). art. , Winterwerp v. Netherlands the Winterwerp 2 more 1 9 Only if the adult does not exercise this right, the court will appoint a so- 22 An adult has a right to a free court-appointed attorney which is paid for 4 1

The court must tellthe adult aboutthe right to select a representative recently representation throughout guardianship proceedings. proceedings. guardianship throughout representation legal effective and free to right a has adult An

reaffirmed 1 220 98 These people,thanks to a 2005 legalamendment, must 4

in when it held that it is not necessary to appointa to necessarynot is it thatheld itwhen

Matter , Application No. 6301/73, judgment 24 October 1979, 1979, October 24 judgment 6301/73, No. , Application

2 v. 1 226 8

Slovakia, 225 2 1 7 The public prosecutor is not entitled to Article 6 of the ECHR provides for fair

Application

3 22 No. 4

simply provides that 31534/96, 22 4 but thisisnot 222 And finally,

judgment human rights and guardianship in the czech republic 39

0 0 23 1 ) 4

227 Principles Principles 1 234 99 1 2 23 As the requirements 229 , which provides , that be should which ‘there provides 4 Similarly, the ECHR has been interpreted to include include to interpreted been has ECHR the Similarly, 231 Council No. of R(200 Europe Recommendation It is a well-established principle of international law, explicitly explicitly law, international of principle well-established a is It , op cit, para. 51. )(d) of the International Covenant on Civil and Political Rights Rights Political and Civil on Covenant International the of )(d) 228 3 ( ) of the ICCPR are considered basic guarantees ) of basic guarantees of a the are ICCPR fair considered hearing, 3 ( 14 Deprivation of Deprivation legal capacity may, as already noted, result in lifelong 233 See for example, the European Court of Human UN Rights Resolution case Megyeri 46/119 v. on Germany, the Protection of Persons with Mental Illness and the See UN Human Rights Committee, General Comment 13: Equality before the courts and Human Rights Committee, General Comment 13, op cit, para. 5. Principle 7. Decision No. I. ÚS 173/06. Recommendation No. R(2004)10 Concerning the Protection of the Human Rights and Application No. 13770/88, judgment 12 May 1992, (1992) 15 EHRR 584, para. 23. Improvement of Mental Health Care, adopted by the GeneralAssembly on 17 December 1991, Principle 1(6). Dignity of Persons with Mental Disorder,Adopted 22 September 2004, art. 4. the right to a fair and public hearing by an independent court established dated by law, 13 April 1984, para. 2. Matter Slovakia v. such representation, it shall be made available without payment by that person to to person that by payment without available made be shall it it. representation, for such pay to means sufficient have not does she or he that extent the counsel. If the person whose capacity is at issue does not himself or herself secure secure herself or is by capacity a himself at whose shall issue to person be be represented entitled not [t]he does issue at is capacity whose person the If counsel.

determine [their] rights and obligations in rights and a obligations suit at [their] law’. determine 234 229 230 231 232 233 227 228 for the Protection of Persons with Mental Illness and the Improvement of Mental with Illness and Mental of the Persons for Improvement the Protection that, state which Principles), Illness (Mental Care Health placement under guardianship and a loss of the right to exercise fundamental rights rights UN The fundamental exercise to right vote). the of a loss to and guardianship marry, under to placement finances, manage to residence, choose to right the as (such the in obligation this of importance the recognized Assembly General Enforcing this requirement is especially legal by effective this representation providing Enforcing requirement crucial when the is person alleged to lack him to capacity functional or represent herself. and to prevent possible abuses’. possible prevent to and capacity. legal concerning procedures court during rights trial fair incapacitation proceedings. Extension of this right to guardianship procedures is also also is procedures guardianship to right this of Extension proceedings. incapacitation No. R(99) by Recommendation supported concerned the of adult rights the human to protect safeguards procedural adequate to to asbeduringshould a all interpreted free requirement and representation effective (ICCPR) that where liberty is in question, a person must have the right to free legal legal free to right the have must person a question, in is liberty where that ‘procedures (ICCPR) to apply additionally monitoring to the TheHuman Committee, UN Rights obligation and representation. assistance this interpreted has ICCPR, the for body highlights that ‘persons with mental disorder should be entitled to exercise all their civil civil their all exercise to entitled be should disorder mental with ‘persons that highlights rights’. political and benefit from the effective representation also during any appeal procedures. appeal any during also representation effective the from benefit Human Rights Standards: According According to the Court, a Constitutional of person deprived legal capacity must of of Article stated in Article 14 Article in stated 40 mental disability advocacy center 8 (right to respect for private and family life) that forced psychiatric examinations violate Article 6 (right to fair trial)constitutesviolationa Article5. of balance the State’s interest in the examination and the individual’sexaminationan andcontinued rightdetention toafter theobligation liberty ceasesandtoexist, to fails permissibleaction. However, it also found that detaining an individual prior to such obligation under law, such as a court ordered psychiatricliberty. examination, In is,Nowicka on v.its face,Poland, a it held toright thatthe anddetainingECHR the forcedpsychiatricof an to examinationsindividual 5 underArticle in order to fulfilan domestic law’. not he or she has a mental illness except in accordance be withcompelled a procedure to undergoauthorized medical by examination with a view toHuman Rightsdetermining Standards: whether or the basis of a single medical opinion. hospital for six weeks. Analysis: assessment. Conclusion: basis, by itself, to involuntarily detain a person. possibility that a person may lack capacity, either partially or entirely, is not a sufficient Indicator 5 Indicator 240 239 238 237 236 235

applicant’s private life. Application No. 26624/95, judgment 27 November 2003. 2003. November 27 judgment 26624/95, No. Application life. private applicant’s February 21 judgment 11118/84, No. 1989. Application examinations. psychiatric ordered Germany v. Bock See Nowicka v. Poland 5. Principle 1991, December 17 on Assembly General the by adopted Care, Health Mental of Improvement Ibid connection See See the and Illness Mental with Persons of Protection the on 46/119 Resolution UN 187(3). art. Code, Procedure Civil If it is necessary for the incapacity assessment, an adult may be detained in a . Worwa v. Poland Poland v. Worwa An adultAn may be detained for up to six weeks to conduct incapacityan 23 7

Similarly, the ECtHR has examined the issue of detention in relation with an evaluation of his or her legal capacity. capacity. legal her or his of evaluation to an subjected be to order in detained be not may adult An

similar 23 , Application No.30218/96,judgment3December2002,paras.58-61. 5 A doctor must request this, and court can order detention on regarding the length of domestic procedures due to repeated court court repeated to due procedures domestic of length the regarding holding that multiple examinations in a short period of time in in time of period short a in examinations multiple that holding

The Mental Illness Principles statethat ‘[n]o person shall criminal

23 cases 23 8 In othercircumstances,In held ECtHRhasthe 6 This provision has been widely criticised.

constituted 2 4 0 of the ECHR. Consequently, the mere

an

unjustified

interference 23 9 and Article

with

the human rights and guardianship in the czech republic 41 Winterwerp v. the states that ‘[t]here should be be should ‘[t]here that states The ability for the parties in parties the for ability The 4 250 Every means by which the adult’s the adult’s by which means Every 2 4 2 ) ) of the ECHR which guarantees a fair 1 8 4 2 As mentioned above in Indicator 5, there must must there 5, Indicator in above mentioned As 6 4 2 5 4 2 but the court is not bound by the expert’s opinion and and opinion expert’s the by bound not is court the but 7 4 2 Recommendation No. R(99) No. Recommendation Parties may submit their own evidence and call witnesses and and call witnesses own evidence their submit may Parties An adult has the right and opportunity to present his/herown evidence (including witnesses), and to challenge the opposing evidence (witnesses). 41 2 , Application, No. 6301/73, judgment 24 October 1979. All parties to the proceedings may express their opinion about any about opinion their All may express to parties the proceedings 43 2 If the adult participates in the hearing (which is not necessarily the case) case) the necessarily not is (which hearing the in participates adult the If including the incapacity assessment. However, in order to exercise these these exercise to order in However, assessment. incapacity the including 44 , art. 132. , art. 120(1). , art. 125. , art. 123. , art. 187(1). 2 Law provides the general right to submit both written evidence and echoes 6( ThisArticle principle 9 4 2 Civil Procedure Code, art. 187(3). Principle 7(1). For application of Article 6(1) to guardianship proceedings, see Civil Procedure Code, art. 125. Rc 44/1967 from 29 December 1966. Ibid Netherlands Ibid Ibid Ibid Ibid

248 249 250 241 242 243 244 245 246 247 Indicator 6 adults’. obligations. and rights civil evidence, involving present cases to all right in the hearing and evidence counter with evidence challenge to case the fair and efficient procedures for the taking of measures for the protection of incapable incapable of Standards: Rights protection Human the for measures of taking the for procedures efficient and fair in society, and to manage finances. manage to and society, in opinion, expert an be always itself. evidence the of all weigh should detail by courts. According to the established case law, the case court has law, to to the clarify detail by established According courts. the capacity his/her life, in everyday demeanour his/her the of adult, participate situation to personal others, with communicate to relatives, or himself/herself of care take to prognosis. However, neither the Civil Code nor the Code of Civil Procedure specifies specifies Procedure Civil Theof main Code focus ofthe such nor court hearings Code is mentalhealth Civil the diagnosis and adult’s the neither However, some prognosis. in elaborated been has assessment incapacity the of content The so. be this that rights, the adult must be aware of them and the court is explicitly required to advise advise to required explicitly is court the and them of aware be must adult the rights, issues. these about both adult the witnesses, an witnesses, reports expert or and individuals of opinion, statements authorities, legal entities. evidence, witness testimony. witness witnesses. or evidence opposing challenge may of can in may the as serve be particular testimonies ascertained evidence, situation evidence presented by the opposing party. opposing the by presented evidence Analysis: Conclusion: the challenge and examine to and call witnesses and evidence present may she or he 42 mental disability advocacy center up-to-date and it is possible for the expert never to have met themental adult.condition of the adult. However, there is no requirement for the report to Conclusion:be well as evidence demonstrating the adult’s functional abilities. procedural irregularities, such as medical reports that point are out able to outbe also may orstage, financial resources. this Further,dateadult, at the or incomplete, as adult’sthe toulterior accessapplication,instance, formotives thebehind as, such It is principally through such challenges that the court may become aware theof adultpossible the opportunity to challenge evidence and witnesses is Inespecially proceedings important. concerning the deprivation of legal capacity and guardianship, giving include the minimum guarantees of a fair hearing. Article includingwitnesses,callinghearing. aspectfair ofaan is safeguardThis listed is in judge is able to assess what legal steps, if any, should be taken. adult’sbalanced the process,otherthe findings a result of situation.of actual a As at least, the court must compare and link the results of the Theincapacity court assessment is boundwith bythe rule of free evaluationas the only evidence of and evidence. the court may not accept an expert’s findings uncritically.some may say excessively so. In theory at least, Thean incapacity incapacityassessment assessment is in practicemust highly influentialnot serve to the outcome of thecase, information about the expert. substantiation), their and and court the questions of the to opinion answers (the (descriptionsituation,theof evidence,relevanttheofsummaryall facts, aetc.), an adult’s health. Analysis: Indicator 7 Indicator 255 254 253 252 251

minimum guarantees. guarantees. minimum Decision Rc 44/1967 (29.12.1966). 44/1967 Rc Decision 132. art. Code, Procedure Civil (23.12.1980). 1/1981 Rc Decision 3. clause 187 Paragraph Human UN See 14(3)(e). Article Rights Rights, Political and Civil on Covenant International 14 The courts must interview the expert (usually a the psychiatrist) about a (usually expert the interview must courts The ( 3 ) of the ICCPR,theofinterpretedCommittee RightsHuman) to UN the by

a rqie a lat n icpct assmn wih vlae the evaluates which assessment incapacity one least at requires Law Committee, 252 In practice, an incapacity assessment consists of three parts: a finding information, including an in-person evaluation. evaluation. in-person an including information, objective recent, upon based and professional a by qualified conducted assessment, incapacity an of subject the being without capacity legal of deprived is adult No

General

Comment

13,

para.

5

25 regarding 1

25

Article 4 Therefore,theoretically 255

14(3)

as

defining 25 3

human rights and guardianship in the czech republic 43 258 As previously noted, an noted, previously As 260 , the ECtHR specifically cited , cited the specifically ECtHR calls for a thorough in-person meeting meeting calls in-person for a thorough 4 H.F. v. H.F. Slovakia

1 26 In 257 in connection with the obligation to with recent in the consult connection obligation 4 A ofoffinding legal removes the capacity deprivation is extremely brief in this regard. this in brief extremely is 259 A finding of incapacity requires a demonstrable linkbetween the underlying diagnosis and the alleged inability to make independent decisions. , Application No. 54797/00, judgment 8 November 2005. Note that the In a such must society, democratic interference be necessary 256 Legislation does not explicitly require a demonstrable link between the between link a demonstrable require explicitly not does Legislation The Civil Code Civil The Civil Code, art. 10. For reasons of this situation, see also Part 2.4.1. Civil Code, art. 10(1). See Article 8 of the European Convention on Human Principle 12. Rights and Article 17 of the judgment is only available in French. For an English Summary, see Press Release by the Registrar of the European Court of Human Rights, 8 November 2005. International Covenant on Civil and Political Rights. H.F. v. Slovakia Quality of Evidence Provided to the Court in Incapacity Cases (Indicators 8-12)

259 260 261 256 257 258 Indicator 8 Recommendation No. R(99) Recommendation adult may be restricted of legal capacity if, due to a mental health problem, the adult adult the problem, health mental a to due if, capacity legal of restricted be may adult law. in acts undertake to able not is adult’s diagnosis and the alleged inability to make decisions. make to inability alleged the and diagnosis adult’s Analysis: Conclusion: second psychiatric report would have been in the interests of the adult concerned. adult the of interests the in been have would report psychiatric second 2.6.3 medical reports in determining legal capacity. In this case, it found that relying on In that relying this case, found it legal capacity. in determining reports medical to safeguards procedural sufficient to amount not did report psychiatric outdated an a for a request that added It issue. was at capacity legal whose applicant, the protect up-to-date report to attest to the person’s condition and notes that the resulting report report resulting the that notes and condition person’s the to attest to report up-to-date in writing. be recorded should that a decision to deprive an adult of legal capacity is based on current and reliable and reliable is current on based legal capacity of an adult to deprive that a decision R(99) No. Recommendation information. for an requirement It the asserts expert’. qualified and a ‘suitably the adult between public life. It, therefore, interferes with those rights to privacy that are protected by are that protected to privacy rights those with interferes therefore, It, life. public law. international and in accordance with the law. Legislation should contain to provisions ensure Human Human Rights Standards: an right to individual’s make about all decisions areas of his or her personal and ensure that it is up-to-date, does not require an in-person assessment, and does not not and does assessment, significant an in-person require not does represent is it that up-to-date, ensure elements these of All in-writing. be opinion the that require even law. the in weaknesses The law does not stipulate any time limits for the incapacity assessment in order to order in assessment incapacity the for limits time any stipulate not does law The 44 mental disability advocacy center Illness Principles,Illnessspecifically principle underlyingdisability. Principles 7 and protectionlevelsofseveritythe retentionnature andof andthe on rights based of thatpsycho-social disabilities fluctuate,can thatand individuals will differentneed circumstancesunderstandingher orreflects needs.an This tailoredhisand andto is necessary, it should be proportional to the degree of Principlefunctional capacity 6of theon adult proportionality indicator Recommendation invokesthe This also states several of R(99)No. that if a measure of protection such as guardianship limiting such decisions. disabilitywarrantedmentalthe degree whatindependent tomake choicesandto individual’sability the impaired disability mental a demonstrating that without capacitydeprivedlegalbeen ofhaving individual as ancompetence classifying by principlerestrictlegal thisillness.’mentalto to Accordingly,contrary bewould it illnessexcept forpurposes directlyrelating mentaltoillness consequencesorthe of mentalaperson otherwisehas,indicateaorhaving, thatperson as a classify shall Standards: Rights Human dictate the judicial one. to defer excessively to the sole opinion of a physician,necessitates allowing theat leastmedical partial opiniondeprivation to of legal capacity. In this regard Inpractice,the courtscourts tenddo not assess the causal link, assuming amental health diagnosis incapacity to undertake acts disordermentalinandthe between linklaw, causal requires a lawbutthe it, of faceit the On does not require this link to be demonstrable. parties. finding ofthe facts of case. a In its quest forthe truth,the court is not bound bythe Analysis: legal capacity must serve the interests of the adult. sufficient evidence. The law does not contain an explicit conditionConclusion: that deprivation of to assist the individual in making decisions. rights standards will mean that legal capacity is restricted only to the proportionateextent necessary to the aims pursued. In essence, complying with international human Article8 of the ECHR mandates that any interference with a person’s private life be assessment of the adult’s particular needs is an issue of fundamental fairness. Further, Indicator 9 Indicator 262

Civil Procedure Code, art. 120(2). art. Code, Procedure Civil 262 In general,requiresIndecisionlaw thea onabased capacity legalbe onto To the contrary, the court is obliged to produce all the evidence necessary for There is no requirementthat a finding of incapacity must bebased upon and serves the interests of the adult. adult. the of interests the serves and evidence sufficient upon based is incapacity of finding A This indicator finds express support in the Mental the in support express finds indicator This 1 2provide that an adequate investigation and 4 (5) which states: ‘[n]ostates:whichauthority(5)person or 4 principles. human rights and guardianship in the czech republic 45 268

267

270 , p. 23. , , by it held that the statements Law explicitly requires the judge to interview interview to judge the requires explicitly Law 3 and the judge must hear an expert during the the during expert an hear must judge the and 4 26 26 H.F. H.F. v. Slovakia 265 In 1 27 This indicator looks at two elements of incapacity , Application, No. 54797/00, judgment 8 November 2005. Současná úprava institutu opatrovnictví v ČR

The court may evaluate evidence at its own discretion. own its at evidence evaluate may court The R.,

266 ‘Qualified expert’ is not defined, but should be understood as referring to referring as understood be should but defined, not is expert’ ‘Qualified provides that the decision maker in incapacitation proceedings should see see should proceedings incapacitation in maker decision the that provides 269 4 Kaňka, . , art. 187(2). , art. 187(3). , art. 125(1). , art. 132.

Principle 12. See UN General Assembly, Declaration on the Rights of Mentally Retarded Slovakia v. H.F. Persons’ Ibid Ibid Ibid Ibid Ibid Resolution 2856 (XXVI), 20 December 1971, para. 7. See

269 270 271 263 264 265 266 267 268 report is necessary for States to meet their obligation under the ECHR, and that lay lay that and ECHR, the under obligation their meet to States for necessary is report concerned concerned individual’s former spouse and lay witnesses, in evidence expert an sufficient was combination with not a and that old, half years was one that clarifies a evaluation only psychiatric not therefore, case, The capacity. legal of deprivation a for As As detailed the above, ECtHR has the highlighted of necessity a qualifiedexpert capacity. to report determine a psychiatrist or psychologist, possibly with specialized training in capacity assessment assessment addition in capacity in training suggested specialized has with Nations possibly United psychologist, or The psychiatrist a practitioner. medical capacity. general a social than adult’s rather the of evaluation an conduct must experts that the individual personally, and that an up-to-date report from a qualified expert must be must expert qualified a from report up-to-date an that and personally, individual the submitted. domestic court and the impact of the ruling upon the adult’s interests. interests. adult’s the upon ruling the of impact the and Recommendation court domestic standards. qualitative specific meet must evidence the sufficient, be To R(99) No. Human Human the Rights to submitted Standards: basis evidentiary the – guardianship subsequent and determination someone else’s interests. Commentators have noted that paternalistic attitudes of mental mental of attitudes guardianship by paternalistic that offered noted have ‘protection’ the Commentators and interests. prevail, else’s still someone general in consequences. disability negative and probable) ill-health (or possible against weighed explicitly rarely is There is no specific requirement that a finding of legal incapacity must be based upon based be must incapacity legal capacity of legal finding of a that deprivation requirement that specific no is require not There for does law capacity the legal of adult Similarly, an deprive evidence. to sufficient therefore possible is it interests: adult’s the in be notarial or executorial records and other documents, on-site search and examination of of examination and search on-site documents, other and records executorial or notarial participants’. the Otherwise, only general legal provisions apply. Thus, ‘every means by which the [adult’s] [adult’s] the which by witnesses, means of ‘every Thus, examination apply. particular in provisions legal evidence: general as only serve Otherwise, may ascertained, be can situation or entities, legal individuals of authorities, and statements reports report, an expert’s the adult if the latter has requested it, requested has latter the if adult the 7). indicator also (see proceedings the assessment of the factual situation. factual the of assessment the 46 mental disability advocacy center an obvious conflict of interests (see Indicator in Principles 5 and 6. order to meet the necessity, subsidiarity, and proportionality workrestricted.requirementsSuchisconsiderations proceedingsduring in should examined be prescribed may guardianship not betheinindividual’s bestinterest if, aresult, as theright to an important source of social interaction and self-esteem for an employedneedsandcircumstancesof the person concerned.’ individual, For example,employment as is intoaccountindividual the necessary, established istaking bemeasure‘unless the provided As in Principle 5 of Recommendation No. R(99) protection the and offered guardianship weighed negativeby against account consequences forthe individual. into taken be must circumstances individual’s the and interests the paramountconsideration’.persontheshould bethat of welfare adult incapable an of protection of measure R(99) a implementing No. Recommendation by suggested as Secondly, the required burden of evidence. These points indicatethat even an expert opinion on mentalcapacity may not meet orderreflecttofunctional the capacity the individualof the time the hearing.at of witnessesarenotsatisfactory a substitute, but thatalsothereport must berecent in social care institution) as a guardian. available, the court appoints a legal entity (public authority,become health guardians, care the institution, law gives preferenceor to their appointment.adult’stheadult’sonthe needs.than If actual relatives availabletowillingare and primarilyisbased uponconveniencethe approvaland adult’stheof relatives rather Analysis: feelings do not need to be taken into account. Conclusion: Indicator Indicator 273 272 275 274 The Ibid Children). of Protection Legal and Social on Coll. 31–37a, Arts. Act, Family of 359/1999 (a) 17 with No. Act Art. Coll. connection in following the and and 78 63, Art. 45c., No.94/1963 the Act the children), (See of cases. protection some in social-legal parents the foster for authority an (usually guardian parents, adoptive the further parents, primarily are minor the of guardian the act, this to According Civil Code, art. 27(3). art. Code, Civil 8(1). Principle There is Thereinsufficient is criteriaaguardian because selecting for selectionthe

, art. 27(3). art. , Family There are no criteria for selecting a guardian. The adult’s The and guardian. wishes criteriaselecting a for no are There 1 0

Act

makes the wishes and feelings of the adult are considered. considered. are adult the of feelings and wishes and the criteria objective on based is guardian a of Selection

only

exception 275 . Appointing such an institutional guardian is

and

specifies 11 27 3 , below).

who

shall 4 4 ,restriction should not

‘in salsig or establishing ‘[i]n , be

27 guardian 272 4 If no relatives are To this, achieve

to

minors. human rights and guardianship in the czech republic 47

279 282 translation

www.finlex.fi/

at

Unofficial

5.

280 Available

Section

provides that provides respect for the 2,

4 Government.

Chapter

The Explanatory Memorandum to the to the Memorandum Explanatory The 1 28 Finnish 442/99,

This, presumably, includes the appointment of appointment the includes presumably, This, the

Act,

277 of It also suggests that States take steps to ensure that that ensure to steps take States that suggests also It

278 276 further states that wishes of the as‘the adult to the provides that provides the primary in concern assessing the 4 4 Services The requires Disability States Convention Parties to

service

a

FINLEX,

Guardianship

by

Finnish

provided Recommendation No. R(99)4, Principle 9(2). Explanatory Memorandum to Recommendation No. R(99)4, para. 44. Civil Procedure Code, art. 35(1)(e). Convention on the Rights of Persons with Disabilities, adopted Principle 8(2). by the UN General Principle 17. en/, visited 18 July 2006. Assembly on 6 December 2006,A/61/611, ref art. 12(4). The

281 282 276 277 278 279 280 due due respect. Thisapplies toprinciple allstages of establishing and implementing may exist in some families and recognise the dangers these conflicts may present. may conflicts these dangers the recognise and families some in exist may past and wishes and present feelings of the be adult should ascertained and given and, as far as possible, given due respect’. due given as and, far as possible, relatives of role irreplaceable and invaluable the whilst that warns Recommendation interest of conflicts acute that aware be must law the valued, and recognised be must choice of any person to represent or assist him or her should be taken into account account taken into be should her him or assist or represent to person any of choice necessary to be appointed as a guardian. For example, Finnish legislation provides provides as necessary to be a legislation Finnish appointed guardian. example, For based on be guardian of that skill, should a the determined suitability prospective required. duties the of extent and nature the and experience qualified guardians are available. This might include creating training associations. training creating include might This available. are guardians qualified This indicator also measures whether prescribes legislation qualities or attributes Recommendation No. R(99) Recommendation and promote to ‘safeguard that person of be ability a of should guardian suitability welfare’. and interests adult’s the will and preferences of the person’. the of preferences and will guardian. a Human Human Rights Standards: rights, the respect capacity legal of exercise the to relating ‘measures the that ensure identify who may be the applicant. The public prosecutor is not entitled to intervene of intervene guardian, to similarly to entitled the the procedure, law incapacitation not does not is expressly prosecutor public The applicant. the be may who identify procedure. guardianship the in Law Law is also silent about the of consideration the personal wishes and preferences of the adult concerning the of appointment a guardian. As to the appointment is needed for a public guardian. Guardians are not screened for suitability nor is there there is nor suitability for screened not are Guardians guardian. public a for needed is any mandatory training, or indeed any training state-run which guardians could attend. voluntarily A potential guardian must agree to the appointment in advance, but no such agreement agreement such no but advance, in appointment the to agree must guardian potential A Recommendation No. R(99) No. Recommendation Finally, Principle 9 No. R(99) of Principle Recommendation Finally, 48 mental disability advocacy center There isan in-built safeguard for such conflict situations,namely the so-called ‘collisionarrangement for the adult. residentialmoreappropriatelargeadvocateinstitution, aa for tounlikely living is question.in Similarly, theguardian,whose income depends onthemaintenance of wouldturntothe guardian, thissomeoneincase who isemploying thevery nurses the adult wants to complain about, for example, the quality of nursingdirector care,or theother adult staff of socialcare institutions wherethe adultquestion livesas guardian. the suitability of such arrangements. Secondly,prioritising in case ofof familyappointment members as guardians ofand thethe lack of obligationAnalysis: on the court to appearance of such a conflict. requirethat the guardian should not have aconflict of interest withthe adult theor Conclusion: as a representative. guardianship, but it is particularly important in choosing the person to be appointed and undue influence’. the person’. Specifically, however,these measures mustpreferences beandof‘free will ofrights, theconflict respectcapacity oflegal exerciseof theinterest to relating capacity. Such as noted guarantees, again above, include a provision that ‘measures procedural guarantees to protect people who need assistance in exercising their Article legal of way by ensure toConvention Disabilityseeks Standards: Rights Human the interests of the adult. explicitlyinsert a clause to the oath stating that the guardian shall perform duties in fulfil dutiesand respectthe instructions ofthe court. underused. guardian’, Indicator Indicator 289 288 287 286 285 284 283 Kaňka, See Assembly on 6 December 2006, ref A/61/611, art. 12(4). art. ref A/61/611, 2006, December 6 on Assembly Ibid Convention on the Rights of Persons with Disabilities, adopted by the UN General General UN the by adopted Disabilities, with Persons of Rights the on Convention 180(1). art. Code, Procedure Civil 32(2). art. Code, Procedure Civil 30. art. Code, Civil

. 28 Kaňka, iutos f la cnlc o itrs feunl aie Frt de o the to due interest frequently First, arise. of conflict clearSituations of 286 4 and ‘proceduraland collision guardian’.

R., Apart from the very generalprovisions,very thelegislationexplicitlyfrom notApartdoes 11 Furthermore, the guardian must take anoath to the court to properly

Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná

R.,

Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná the adult, or the appearance of such a conflict. conflict. a such of appearance the or adult, with the interest of conflict a have not should guardian The 289

288 s rvosy oe (e Indicator (see noted previously As 285 As noted,inexplicablyaretheseAs 287 , p. 5. p. , In theory, the court may also , p. 24. p. , 1 2( 4 ), State provisionofState ), 1 aoe, the above), 0 28 3 If

human rights and guardianship in the czech republic 49 of

State

service

2002, a

The guardian guardian The 3

29 292 Edition

Legifrance,

by Edited

Recently, the Constitutional Constitutional the Recently, 2000, 295

provided

June

77.

translation p.

6, which states that: states which 6, 1 Membership

Glossary, NGA Unofficial

The Standards of Practice adopted by the National byNational the adopted of Practice Standards The

290 see the

495.

by

in Standard Standard in The right of the person concerned tolodge an wasappeal of Theconcerned right theperson art. 1

4 29 ‘ward’, 29 An adult has the right to appeal a finding of incapacityand/or the appointment of a guardian.

6 continues: ‘[a] guardian who is not a family guardian shall not not shall guardian family a not is who guardian ‘[a] continues: 6 III,

of

Ratified ch.

2 XI,

1 Legislation provides that the adult has the right to appeal of a has to appeal finding the right that the adult provides Legislation definition

a . Title

The finding of incapacity or the appointment of a guardian is such a serious serious a such is guardian a of appointment the or incapacity of finding The

Directors,

Civil Procedure Code, art. 205a(2). R 77/1965. Frenchart.II,ch.420,X,applicableCivilTitle Code Book 1, adults to under guardianship per National GuardianshipAssociation, ‘Standards of Practice’,Adopted by the NGA Board of College, Pennsylvania, page 9. Ibid the French Government.Available at www.legifrance.gouv.fr, visitedAugust 2 2006. self-serving or adverse to the position or best interest of the ward. the of interest best or position the to adverse or self-serving The guardian shall avoid even the appearance of a conflict of interest or impropriety impropriety or interest of conflict a of appearance the even arises avoid interest of shall conflict guardian or The Impropriety ward. the of needs the as with dealing perceived be can when that interest agency or personal some has guardian the where

For 293 294 295 290 291 292 Indicator explicitly upheld by the courts of general jurisdiction. general of courts the by upheld explicitly both of these proceedings. According to to that According rule, the is adult during both entitled only of not these proceedings. also exists right this but instance, first of court the at evidence his/her present the procedure. appeal Analysis: that rule to ‘the of the full to life concerned of person appeal’ applies intervention legal incapacity and/or the appointment of a guardian. However, be this may right of a However, guardian. the appointment and/or legal incapacity if of on a the the the violated court proposal decides to expert not medical deliver adult. the to judgment Conclusion: poor quality services from service providers on behalf of the adult. Clearly, where the the where Clearly, adult. the of behalf on interest. providers of service from conflict services a quality has poor guardian the provider, service the also is guardian directly provide housing, medical, legal or other direct services to a ward’. a to services direct other or legal medical, housing, or provide inadequate directly inappropriate, challenge to duty his/her out carry to free remain should Guardianship Association (NGA), a United States-based membership organisation of of organisation membership States-based United a (NGA), Association Guardianship a between interest of conflict of issue the addresses professionals, legal and guardians ‘ward’, a and guardian duties, is designated to represent the adult when his or her interests are in conflict with with conflict in are interests her among who, a guardian’ other or ‘supervisory appointed is his guardianship additionally when adult the represent to designated is duties, of the guardian. the interests French legislation directly provides for such occurrences. In France, each adult under under adult each France, In occurrences. such for provides directly legislation French The NGA Standard 1 Standard NGA The 50 mental disability advocacy center R(99) property, right to marry, to found a family, to respect ofbeing hisplaced orunder herguardianship, family including life, andthe right the to vote, right to work, right to Indicatorsrights.those opportunityexercisetheto as wellpossible asas areas many decisionsas makein guardianshiptoshouldrights individualpartialretainplacedunder orplenary an Underlegislation compliant establishedwith international rights,normshumanof 2.6.4 and must be subject to ‘the right of appeal to higher authorities.’for such restrictions must provide ‘proper legal safeguardsPersons against which every provides form that ofwhen abuse’a person’s rights are restricted, the procedure used placed under guardianship should have Human adeRights Standards: within Ingeneral, theCode ofCivil Procedure allows filing an appeal against a judgement adult must enjoy effective legal representation duringthe appellateCourt proceedings.has held that there is not only a right to appeal but also a requirement that the both parliamentary chambers, and similarly both the right to vote and thefollowing right to areas:be the right to vote in parliamentary Analysis:elections, exercising significant political rights suchas the right to vote. Conclusion: right to associate. deliver the decision on legal capacity, as noted in Indicator Indicator Indicator 300 299 298 297 296

4 Rights of the Adult After Guardianship Is Established Established Is Guardianship After Adult the of Rights (Indicators 13-17) (Indicators Republic. 1971. December 20 of (XXVI) 2856 resolution Assembly Art. 2 of Act No. 247/1995 Coll., Act on Elections to the Parliament of the Czech Czech the of Parliament the to Elections on Act Coll., 247/1995 No. Act of General 2 by Art. Proclaimed Persons, Retarded Mentally of Rights the of Declaration UN 14(3). Principle §201. Code, Procedure Civil 173/06. ÚS I. No. Decision relies on the United Nations Declaration on the Rights of Mentally Retarded 1 5days from the delivery of ajudgement. Legislation deprives people with nocapacity of their political rights inthe Adults under bothplenary andpartialguardianship aredeprived from 13 political rights. rights. political exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By 13 - Recommendation No. R(99) 1 7 address the residual rights that exist for adults afteradults forexist thatresidualrights theaddress 7 quate rights to appeal. 297 But the court may decide not to 4 mandates that every adult 3 4 00 , above. the right to be elected to 298 299

For this proposition, 296

human rights and guardianship in the czech republic 51

3 0 05 3 3 of Protocol Protocol of senators, 4 3 0 3 . s and vote in local referenda. local in vote and 02 3 08 3 or the Public Defender of Rights 06 3 regional councils, regional 1 0 3 The right to political participation and universal suffrage suffrage universal and participation political to right The Act No. 349/1999 Coll. on the Public Defender of Right 07 3 , art. 19(2). , art. 19(1). Protecting the right of persons with disabilities to vote by secret ballot in elections elections in ballot secret by vote to disabilities with persons of right the Protecting in voting by a person of their own choice; own their of person a by voting in effectively hold office and perform all public functions at all levels of government, government, of levels all at and to to functions stand for elections, intimidation, public without and referendums all public perform and office appropriate. hold where effectively technologies new and assistive of use the facilitating the Guaranteeing free of expression the will of persons with assistance as disabilities allowing request, their at necessary, where end, this to and electors accessible and easy to understand and use. and understand to easy and accessible Ensuring Ensuring that voting procedures, facilities and materials are appropriate,

Art. 2(2) of Convention on the Rights of Persons with Disabilities, adopted by the UN General Arts. 4(2)(b) and 5(1) of Act No. 491/2001 Coll., on Elections to the Municipality Art. Act2 of No. 22/2004 Coll, on the Local Referendum. Constitution, art. 57(1). Ibid Ibid Assembly on 6 December 2006,A/61/611, ref art. 29(a). Councils. MunicipalitytheElections130/2000 RegionaltoColl.,onNo. Act of5(1) 4(2)(b)Arts.and Councils.

iii. ii. and public life on an equal basis with others, directly or through freely chosen chosen life on or freely an through directly and public equal basis with others, disabilities with persons for opportunity and right the including representatives, by: alia, inter elected, be and vote to i. Ensure that persons with disabilities can effectively and fully participate in political political in participate fully and effectively can disabilities with persons that Ensure 306 307 308 301 302 303 304 305

to the ECHR which provides that countries ‘undertake to at to free hold the ‘undertake elections that ECHR countries which provides 1 Within Europe, a restriction of a person’s right to vote engages Article Article engages vote to right a person’s of a restriction Europe, Within intervals reasonable by secret ballot, under which conditions will ensure the free a. political rights and the opportunity to enjoy them on an equal basis with others, and and others, with basis equal an on them enjoy to opportunity the and rights political to: undertake shall has been recognized internationally in has Article 25 been of internationally recognized the TheICCPR. morerecent ofpolitical components the detail specific in sets greater out Convention disabilities Disability with people to ‘guarantee to Parties States requires 29(a) Article Its rights. (Ombudsman). Standards: Rights Human Adults restricted or deprived of legal capacity are prohibited from holding some public public some holding from prohibited are capacity legal of deprived or restricted Adults Foror offices theyexample positions. may not be president, elected members of the lower house of parliament, These rights are denied to all people under plenary guardianship, regardless of their of their regardless guardianship, plenary under to people all denied are rights These ability. functional of level individual actual, elected to municipality councils, municipality to elected 52 mental disability advocacy center n peay urinhp Lgsain xlds epe ne gadasi from guardianship under people excludes Legislation guardianship. plenary and Conclusion: character at any time when his or her capacity permits him or her to thedo personso’. concerned of the right to vote, or to … make other decisionsthatmeasurea of protection of a personalsuch guardianshipas ‘should not automatically deprive functionalcapacityRecommendationofovernaturetime. R(99)No. dynamicthe recogniseas different thatfunctionalwell as degrees capacity of exist This specifies that legislative frameworks need to incorporate guardianship laws that andself-determination is elaborated in Principle autonomy to right disabilities, mental Specificallythe addressing individuals with to participate in such activities’. thereforeimportant that people with disabilities exercisecan their rights to vote and diversityof its citizens andbenefit fromtheir varied experienceand knowledge. It is process, democraticthe Council of theEurope hasrecently and participationstated publicthat ‘[s]ociety to respectneeds toreflect the with disabilities with people legislature’.expressionchoicetheopinionthepeopleof thethe inof of Regarding havenegativea psychological impactpeople as deprivedare importantofan source guardianshipfromworkingundermines autonomythe individual.theof may This Standards: Rights Human cannot work as attorneys, guardianship under people example, professions. For and positions specific some Legislationrestrictsalsoadults underplenary orpartialguardianship fromholding persona entercan into employmentan relationships theyifareover employed people thus need to have legal capacity to Analysis:start a business. As for employees, holding some positions. Indicator Indicator 315 314 313 312 311 310 309

Small Businesses Act (No. 455/1991 Coll.), art. 6(1)(b). art. Coll.), 455/1991 (No. Act Businesses Small 2006-2015, Recommendation No. (2006)5, para. 3.1.1. para. (2006)5, No. Europe in Recommendation 2006-2015, disabilities with people of life of quality the improving society: in disabilities Act No. 6/2002 Coll., on Courts and Judges, art. 60(1). art. Judges, and Courts on Coll., 6/2002 No. Act 7(1)(a). art. Coll.), 358/1992 (No. Act Notary 5(1)(a). art. Coll.), 85/1996 (No. Attorneys’ Act 6(1). art. 262/2006), (No. Code Labour 3(2). Principle R(99)4, No. Recommendation with people of participation full and rights the promote to Plan Action Europe, of Council People performcan ‘business’ capacity.legalhavetheyonlyfullif The limitation the of right to work exists for people under both partial 14 right to work. work. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By 313 public notaries, eilto wih uoaial bn a aut under adult an automatically bans which Legislation 3 09

314 or judges. 3 of Recommendation No. R(99) 31 5 1 5 years5old. 4 emphasises 31 0

311 Self- 31 4 2 .

human rights and guardianship in the czech republic 53

Recommendation 7 31 20 3 byThisis approach followed the 9 31 while some may Therefore, restriction be 8

31 6 31 , Application, No.13710/88, judgment December16 1992, (A/251-B) By being placed under guardianship, an adult is not automatically deprived of the opportunity to exerciseright the to property. 5 1 People under plenary guardianship are automatically deprived of their deprived are automatically guardianship plenary under People provides that a is where it be provides should measure of necessary, protection 4 People under plenary guardianship are not entitled to exercise any property property any exercise to entitled not are guardianship plenary under People Recommendation No. R(99)4, Principle 6. Rule 7(2). Convention on the Rights of Persons with Disabilities, adopted by the UN General Article 6 of the International Covenant on Economic, Social and Cultural Rights, UN Charter (revised), Strasbourg, 3 May 1996. Assembly on 6 December 20066 December 2006,A/61/611, ref art. 27(1). Niemietz v. GermanyNiemietz v. (1993) 16 EHRR 97, para 29. A/6316,DocumentArticleEuropeanenteredthe15(2)Marchofintoforce1976; Social 23

318 319 320 316 317 Indicator travelling by public transport, or making a phone call from a public phone box. box. such asrights. Thisminor transactions theoretically buyingphone includes a newspaper, public a from call phone a making or transport, public by travelling exist also for people under the partial guardianship. partial the under people for also exist Analysis: right to dispose over property independently. The deprivations of the right to property property to right the of deprivations Conclusion: The independently. property over dispose to right an equal basis with others; this includes the right to the opportunity to gain a living by by living a gain to opportunity the to right the open, includes is this that others; with environment basis work equal an and market labour a in accepted or chosen freely work disabilities’. with persons to accessible and inclusive in the employment field must not discriminate against persons with disabilities and and disabilities with persons against discriminate not must field employment in the on work, to disabilities with persons must not of raise to obstacles their employment’. right ‘the out sets which Convention Disability in society without any examination of their functional capacity or to desire capacity of do any their functional so. in examination without society of Equalization the on Rules Standard UN the to contrary also are restrictions Such regulations and ‘[l]aws that states which Disabilities, with Persons for Opportunities individual’s circumstances and circumstances individual’s needs. of allpeople employment from aprohibition blanket in situations, certain justified with people under from excludes guardianship arbitrarily disabilities participating (Revised) European Social European (Revised) the Charter protect right to work. the to tailored and adult the of capacity functional the of degree the to proportional relationships with the outside world’. outside the with relationships the and Rights Cultural and Social Economic, on Covenant International the Both respect to private life, and the ECtHR has included the right to work within its scope. scope. its within work to right the included has ECtHR the and life, private to respect the that lives working their of course the in all, after is, ‘it that, noted formally has It ofdeveloping opportunity if not the greatest, a have significant, of people majority of self-esteem and social interaction. Article 8 of the ECHR seeks the protection and and protection the seeks ECHR the of 8 Article interaction. social and self-esteem of No. No. R(99) 54 mental disability advocacy center The right to useand manage one’s own property is set out inArticle with disabilities are not arbitrarily deprived of their property.’loans,mortgagesother financialformsand personsensurethat ofcredit, shall and inherit property, to control their or own disabilities own persons with to financial of right equal the affairs ensure effective to measures and to have equal access tobank Article in The Disability Convention sets outthe right of acknowledgefunctionalindividualspropertyvariedmentalcapacitydisabilities.ofwiththe of people under managing guardianship from undermine individualsfinances theirofaspect autonomyto any refuse as dignity, well and as exclude automatically that systems contracts. binding Guardianship legally enter and transactions complete finances, manage to HumanRightsStandards: adult retains or loses. the court decision which must clearly indicate either those decision-makingWhether areasadults the under guardianshippartial exercisecan property rights depends on equal basis to others’. toown and inherit property, providing legal protection to manage their assets on an This includedthe responsibility ‘to ensurethe equal right of persons with disabilities insociety’ which listed concrete measures to betaken by member states to thisend. ‘ActionpromotetoPlanparticipation fullrights theand peopleofdisabilities with everydaynature’.an transactions effective of legally into enter enabled to be should adultpossible the RecommendationNo.R(99) 1 to the ECHR, which reads, in relevant part: 324 323 322 321

principles of international law. generalconditionsinterestthesubjecttheby andto and provided law by for his public enjoyment ofthe possessions inexcepthisdeprived peaceful ofbe shallpossessions. one the No to entitled is person legal or natural Every main text of the Convention. Convention. the of text main Council of Europe, Disability Action Plan 2006, op cit, para. 3.12.3(viii). 3.12.3(viii). para. cit, op 2006, Plan Action Disability Europe, of Council 3(4). Principle R(99)4, No. Recommendation the as force legal equal has and 1952, March 20 on signature for opened Protocol This 10(2). art. Code, Civil 1 2(5). Under this provision States Parties ‘shall take all appropriate2(5).provisionall Underandthistake ‘shallParties States 3 3 3 23 2 2 1 4 The Council of Europe returned to this theme in the Council2006 the The themeEurope of in this returned to

The right to property includesthe ability individualsof 4 expands on this, by recommendingexpandsbythis,on ‘[w]heneverthat 3 22 1 of Protocol No. human rights and guardianship in the czech republic 55 An - 25 3 and it will and it not 2

33 29 3 The court will act only only act will court The 331 In other words, this is an absurd situation situation absurd an is this words, other In 27 3 but not ex officio. ex not but 0 33 (How healthy a person needs to be to get married is not not is married get to be to needs person a healthy (How These provisions are absurd, unnecessary and unworkable unworkable and unnecessary absurd, are provisions These 28 333 3 By being placed under guardianship, an adult is not auto matically deprived of the opportunity to exercise the right to marry, to found a family, and to respect of family life. 6 1 Adults under plenary guardianship are prohibited from marrying. Those Those marrying. from prohibited are guardianship plenary under Adults (No. 94/1963 Coll.), art. 14(2). (No. 94/1963 Coll.), art. 14(4). . . . . (No. 94/1963 Coll.), art. 14(3). . Deprivation or limitation of legal capacity has substantial legal consequences consequences legal substantial has capacity legal of limitation or Deprivation Marriage is further prohibited when ‘a person suffers from a mental disorder disorder mental a from suffers person ‘a when prohibited further is Marriage 26 FamilyAct (No. 94/1963 Coll.), art. 14(1). Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid 3

330 331 332 333 325 326 327 328 329 Indicator with purpose of marriage. of purpose with anywhere). specified proclaim this marriage null and void, and null marriage this proclaim marriage into entered who the of adults compatible one of is the on application adult the of condition health the if void and null marriage the proclaim ‘who suffers from a mental disorder which is of such an effect that his/her legal capacity capacity legal his/her that effect an an or adult such capacity legal limited with an by of adult was entered marriage the When is which disorder mental a from will suffers court the ‘who court), the of approval have not did person this (and limited’ be would fully deprived of legal capacity or ‘suffers from a mental disorder which is of such an such of is which disorder mental a from ‘suffers or capacity legal of deprived fully capacity’. legal his/her of deprived be would person this that effect and thus in urgent need of reform. reform. of need urgent in thus and ofone was adults the when void nulland A proclaimed will marriage be ex officio ‘whose legal capacity would be limited’ if the health condition of the adult is compatible compatible is adult the of of an adult marriage the allow may court the that condition Law also stipulates health the capacity. legal if limited’ be would capacity legal ‘whose marriage. of purpose with or his/her legal capacity would be limited’. be would capacity legal his/her or if in a to marriage right their of of be deprived may capacity full deprived legal with be adults that would they circumstances, speculative purely under scenario particular adult with restricted legal capacity, may enter into marriage only with an approval of a of approval an with only marriage into enter may capacity, legal restricted with adult court. capacity legal his/her of deprived be would person this that effect an such of is which on the adult’s right to respect for family life. These include parental rights and the legal legal the and rights parental include These Analysis: life. married. family get for not respect may to right capacity legal adult’s of the on deprived totally adult An marry. to capacity concerning the respect of family life and the foundation of a family exist for adults adults a of for exist family foundation and the life family of respect the concerning guardianships. plenary and partial under both under partial guardianship may marry with the approval of a court. Severe limitations limitations Severe court. Conclusion: a of approval the with marry may guardianship partial under 56 mental disability advocacy center on the right to various aspects of family life in its Article 2 1 Respect for home and the family and the lack of this elsewhere, the article is given in full: Human Rights Standards: Such adults may not adopt children. parent. responsibility. Adultsunder guardianship whether– plenary or partialmay– not exercise parental 4 3 2. . . .

337 336 335 334 States Parties shall take effective and appropriate measures to eliminate discrimination both of the parents. be separated from parents on the basis of a disability of either the child or one or separationisnecessary for thebest interests of thechild. Inno case shallchilda reviewdetermine,accordance inapplicable with procedures,andlaw such that parentstheiragainstexceptwill, when competent herauthorities or hissubject separated from judicialto be not shall child a that ensure shall PartiesStates services and support to children with disabilities and their families. provideundertakecomprehensiveStatestoPartiesshallandearly information, prevent to and rights, concealment, these realizing abandonment, to view neglect aand segregation With life. of children family with to disabilities, respect childrenensuredisabilitiesStatesthatwithPartiesshall rightswithhave equal responsibilities. performancepersonschild-rearingdisabilitiestheirtheassistancewithtoof in interestsparamount.childbeoftheshall StatesParties rendershall appropriate institutions, where these concepts exist in national legislation; in withall cases theregard best to guardianship, wardship, trusteeship, adoption of children or similar a. and relationships, on an equal basis with others,against so as personsto ensure that:with disabilities in all matters relating to marriage, family, parenthood c. b. States Parties shall ensure the rights and responsibilities of persons with disabilities,

The right ofall persons with disabilities whoare of marriageableage to marry The The rights personsof with disabilities decideto freely and responsibly the on Ibid, Ibid Ibid basis with others. Personswithdisabilities, including children, retaintheirfertilityequal onan the means necessary to enable them to exercise these rights are provided. information,reproductive and family planning education are recognized, and age-appropriatetoaccess have to children andtheirspacing of number and spouses is recognized. consentintendingthefullof and free ofbasis the on family found toa and Family Act (No. 94/1963 Coll.), art. 34(2). art. Coll.), 94/1963 (No. Act Family 33 5 If the other parent is not available, the child may be taken into state care. , art. 34(2). art. , . (No. 94/1963 Coll.), art. 64(2). art. Coll.), 94/1963 (No. 334 aetl epniiiy s wthd o h ohr lgly capable) (legally other the to switched responsibility is Parental The Disability Convention details internationalagreement 33 7

3 . In view of its specificity, 33 6

human rights and guardianship in the czech republic 57

8 33 The right of association can be especially important for for important canbe especially of association right The By being placed under guardianship, an adult is not automatically deprived of the opportunity to exerciseright the to associate. There are specific areas where such restriction exists: a proposal proposal a exists: restriction such where areas specific are There

9 33 341 However, the right to be merely a member of a religion or a religious religious a or religion a of member a merely be to right the However, 0 2 which reads, ‘[m]en and women of marriageable age have the right right the have age marriageable of women and ‘[m]en reads, 2 which 7 1 34 1 The right to associate is restricted for people under the guardianship in in guardianship the under people for restricted is to associate right The , art. 2(3). Legislation is quite laconic when it comes to the right to associate. There are are There associate. to right the to comes it when laconic quite is Legislation Act No. 83/1990 Coll.,Association on of Citizens, art. 6(2). Act No. 424/1991 Coll., Associationon in Political Parties and Political Movements, art. Act No. 3/2002 Coll., on Religions and Religious Societies, art. 10(1). 2(3). Ibid

disabilities, every undertake careefforttowithin disabilities, alternative theprovide wider setting. family a in community the within that, failing and family, States Parties shall, where the immediate family is unable to care for a child with with child a for care to unable is family immediate the where shall, Parties States 339 340 341 338 Indicator

Promote actively an environment in which persons with disabilities can in with which effectively an disabilities persons actively environment Promote and fully in participate the of conduct affairs,and public discrimination without participating in political and public life. Its Article 29(b) mandates States Parties to: setsto: out thetoright asParties in associate Convention anTheDisability element States integral mandates 29(b) Article Its life. public and political in participating associations in particular may give individuals a collective political voice to lobby for for lobby to voice political collective a individuals give may particular in associations change. legislative and policy Human Rights Standards: Human with individuals as mental disabilities in membership advocacy and peer support groups can foster skills development, empowerment and autonomy. Advocacy legal capacity. legal ensured. is society no legal limitations for people under guardianship to join non-profit organisations, non-profit join to guardianship under people for limitations legal no full with adults by submitted parties. be political shall or society religious a or church a of registration a to some specific areas. specific some Analysis: Conclusion: Conclusion: this right’. right’. this similar obligations and duties to respect a person’s right to marry and found a family family a found and marry to right person’s a respect to duties and obligations similar of exercise the Article under governing laws national the to according family, a found and marry to Article 8 of the ECHR guarantees the right to respect for private and family life, home home life, family and private for respect to with, right the interfere guarantees to ECHR not the of obligation 8 Article negative a States on imposes This correspondence. and are and There family life. private a person’s to respect, obligations and also positive 5. 58 mental disability advocacy center Human Rights has confirmed that ‘an inherent part of the right set forth inArticle 2.6.5 organisations could be ‘necessary in a democraticrestricting society’. the rights of people under guardianship tois associate, the right form to or joinform non-profit associations. Although the wording of Article protection of health or morals or for thelaw protectionand necessary in a democratic of the rightssociety andfor onefreedoms of the listed offor others.grounds, the protection such as for the of his interests.’ Any freedomrestrictions of onassociation these rights with must others, be laid including down thein the ECHR. right This states:to form ‘Everyone and to join has the trade right unions to freedom of peaceful assembly and to i. including: participationencouragepublictheiraffairs, others,andin with basis equal an on of an adult’s legal capacity – plenary and partial. andplenaryadult’s capacity– an legalof Analysis: capacity to act. decision.the legal whereadultHowever,retains the areas those list may in court thelimitations such of extent the specify shall and capacity legal her or his limit Conclusion: accountability. These issuesare considered by Indicators lawmust specify that the responsibilities of guardians andthe mechanisms for their respect,and has the opportunity to maximize independence and self-determination, In order to ensure that the adult is adequately provided for, is treated with dignity and A prohibition on associating with others to pursue a common aim engages Article ii.

Indicator Indicator 343 342 Participation in non-governmental organizations and associations concerned with with disabilities at international, national, regional and local levels. Forming and joining organizations of persons with ofdisabilities political parties.to represent persons the public and political life of the country, and in the activities and administration

Obligations of the Guardian After Guardianship Is Established Established Is Guardianship After Guardian the of Obligations (Indicators 18-25) (Indicators Sidiropoulos v. Greece Sidiropoulos Civil Code, art. 10(1) and (2). and 10(1) art. Code, Civil As mentionedAs above,restrictions legislationof types two differs between If an adult Ifan is able todecisions take only insome the courtareas, shall 1 8 functional capacity. capacity. functional has he/she where areas those in decisions making from precluded not is guardianship under person A , no. 26695/95, judgment 10 July 1998, (1998) EHRR 633. 633. EHRR (1998) 1998, July 10 judgment 26695/95, no. , 34 11 2 It is difficult to conceive of any legitimate reason that does not expressly refer to it, the European Court of 343 An adult, who has functionalhas adult, who An 1 8-25. 11 11 of ’ human rights and guardianship in the czech republic 59

6 34 by

provided

In such case, the 344 7 34 translation but as noted above the the above noted as but

5 34 Unofficial

501.

sets out that legislation should allow for for allow should legislation that out sets 4 Article

III,

Chapter , which states that ‘[t]he range of measures of protection protection of measures of range ‘[t]he that states which ,

As noted earlier, the disability rights movement 4 XI,

Title

per

of Recommendation No. R(99) No. Recommendation of , art. 10(2). . 3 Recommendation No. R(99)4, Principle 2(5). Legifrance, a service of the fr, visited French 2 Government.August 2006.Available Another at approachfound in www.legifrance.gouv. the Uniformto GuardianshipencourageAct which providesthe guidanceadult’s on how to incorporateparticipationthis principleis into legislation. legislationIn the provides: section entitled ‘Guardian’s Duties’, the model Ibid Ibid French Civil Code Book 1, Title X, Chapter II, guardianshipArticle 420, applicable to adults under

transactions of an everyday nature. everyday an of transactions to any intervention in the health field, or to make other decisions of a personal ofa personal decisions or toother make in field, the health so. to any do intervention to her or him permits capacity her or his when time any at character Consideration should be with permitted, given be may adult the to necessary, is area particular a legal in area. specific arrangements a representation in whereby, acts even or acts when specific undertake to consent, representative’s the Whenever the possible adult should be enabled to enter into legally effective Accordingly, a measure of protection should not result automatically in a complete time. complete to time a vary from may in incapacity that and exist may automatically incapacity of result degrees not possible should be protection should of capacity measure legal a of Accordingly, restriction a However, capacity. legal of concerned. removal person the of protection the for necessary person be to the shown is deprive it where automatically not should protection of measure a particular, In of the right to to concerned vote, make a will, or or to refuse consent consent The legislative framework should, so far as possible, recognise that different 344 345 346 347

. . . 3 4 2. freedom to conclude, the judge must consult a medical expert. medical a consult must judge the conclude, to freedom An illustrative approach An to approach illustrative best practice can be found in France. In the establishing retain should that a can the in may adult list judge transactions undertake France guardianship, individual the tasks which assessing In guardian. the of independent 1 a maximum preservation of legal capacity and is worth citing in full: in citing worth is and capacity legal of preservation maximum a should should include those which are limited to one specific act requiring without the appointment of a or representative a with representative continuing powers’. Human Human Rights Standards: advocates a measure approach to least-restrictive guardianship, which maximises a self-determination, basic principle of human rights. ThisR(99) No. approach permeates Recommendation adult can make. It is much more proportionate and consistent with a human rights rights a human with consistent and proportionate more is much can It make. adult away. taking is it rights which about clear is court the that approach court shall specify extent of such restriction in the decision, the in restriction such of extent specify shall human court has which capacity, legal retains adult an where the areas which those specify may decisions court those all list possibly cannot court the because implications rights capacity in areas capacity some restricted. may legal their have capacity Principle Principle 60 mental disability advocacy center s rvosy oe te iaiiy ovnin tts lal ta ay measures any that clearly Convention states Disability the noted previously As standard. both a benchmark to evaluate the guardian’s performance and abe consulted judiciallyon decisions enforceableaffecting their lives. A legal obligation consultto provides Standards:RightsHuman being contemplated. is issueparticular a thatadultdecision, informingtheanyfor nor takes guardian the before adult’s consent the obtaining for provide provisions that legal no are court,theof Although guardians are obliged to fulfill duties properlyand respectthe instructions guardianship is excluded from decision-making in those areas specified bythe court. processmaking altogether onceguardianship established. is personA under partial Analysis: decisions. Conclusion: giveorherhimadequate information, whenever possibleisthis appropriate,and in principle ‘also implies that a person representingpossible, as intoshouldorfartakenaccountand givensobe and duerespect’. assisting an incapable adult should a decision, ‘the past and present wishes and feelings of theof the adultperson’. should be ascertained relating to the exercise of legal capacity should ‘respect the rights, will and preferences Indicator Indicator

351 350 349 348

Assembly on 6 December 2006, ref A/61/611, art. 12(4). art. ref A/61/611, 2006, December 6 on Assembly the Hearing entitled Ward. 43(1) Section 442/99, Act, Services Guardianship Finnish The See duties. guardian’s the of scope the within decisions on opinion their for individual the ask 3, 313(a). para. art. 98, note supra (1997), Act Proceedings Protective and Guardianship Uniform See guardian. the to known extent the to ward the of values personal and desires expressed the consider shall A decisions, affairs. making in guardian, personal ward’s the manage to capacity the regain or develop and behalf, own ward’s the on act decisions, in participate to ward the encourage shall possible, extent the Convention on the Rights of Persons with Disabilities, adopted by the UN General General UN the by 9(1). Principle adopted Disabilities, with Persons of Rights the on Convention guardians that requiring by principle this incorporates legislation Finnish example, For 180(1). art. Code, Procedure Civil A guardian shall exercise authority only as necessitated by the ward’s limitations and, to to and, limitations ward’s the by necessitated as only authority exercise shall Aguardian Available In case of plenary guardianship the adult is excludeddecision-adulttheisplenaryguardianshipfrom theof case In 34 9

Unofficial urin d nt ed o osl wt te dl rgrig any regarding adult the with consult to need not do Guardians 34 1 3 8

9 50 at they are not obliged to find out what the adult’sthe what out find obligednotThereare. wishes toare they Similarly, Recommendation No. R(99)

www.finlex.fi/en/,

whenever possible. to whenever adhered are wishes his/her and decisions, major about consulted be must guardianship to subject adult An translation Law must ensure that adultsmustensureunderthatLawguardianship must

provided

visited

by 18

FINLEX, July

2006.

a

service 4 specifies that when taking

of

the

Finnish

Government. 3 5 1 This human rights and guardianship in the czech republic 61 4 57 3 However, legislation is silent on the exact exact the on silent is legislation However, 55 3 The Recommendation further advises that: that: advises further Recommendation The 56 3 and the court shall specify the and scope of authority Legislation should provide clear direction to the authority authority the to direction clear provide should Legislation 4 5 3 The scope of authority and obligations of the guardianare clearly defined and limited to those areas in whichthe adult subject to guardianship needs assistance.

3 5 3

52 3 The scope of authority and obligations of the guardian notareclearly obligations and ofauthority The scope , §192/2. The guardian shall take an oath to perform duties properly and follow the the follow and properly duties perform to oath an take shall guardian The Principle 2(6). Civil Procedure Code, §180/1. Principle 2(1). Principle 3(1). Principle 9(3). Ibid Accordingly, a measure of protection should not result automatically in a complete complete a in automatically result not possible be should should protection capacity of legal of measure a restriction a Accordingly, However, capacity. adult. legal the of of removal protection the for necessary be to shown is it where degrees of incapacity may exist and that incapacity may vary from time to time. The should, so framework time. legislative to time far from vary may as recognise that possible, incapacity that different and exist may incapacity of degrees

354 355 356 357 352 353 Indicator 20 of incapacity and various situations’. various and incapacity of protection of the personal and economic interests of incapable adults should be sufficient, sufficient, the for be available should arrangements legal adults other and incapable protection of of measures interests ‘[t]he situations: economic degrees and different personal to the made be to of response legal protection suitable a enable to flexibility, or scope in determining legal capacity to define the scope of the individual guardian’s obligations obligations guardian’s individual the of scope the define to capacity legal determining No. R(99) different to Recommendation respond in capacity. light functional flexibly of can the that adult’s particular framework legal a adopt to countries encourages guardians apart from the court’s decision. decision. court’s the from apart guardians Standards: Rights Human instructions of the instructions court, decision. a in guardian the of obligations to is guide of and the there nothing guardian scope or their and obligations duties defined in law. in defined Analysis: Conclusion: Conclusion: one representative’. one to find the best solution to an individual’s circumstances, ‘[c]onsideration should be should ‘[c]onsideration circumstances, individual’s an to solution best the find to given to the of measures inclusion under which the person acts appointed jointly than more of appointment the involving measures of and concerned, adult the with express a view’. a express trying when that recommending further, goes Recommendation the of 2 Principle particular concerning any major decision affecting him or her, so that he or she may may she or he that so her, or him affecting decision major any concerning particular 62 mental disability advocacy center Conclusion: a will, absent specific permission of the court.conveying or purchasing property, the interests of the adult by prohibiting guardiansmatter, from or enumerated property’. activities including specifies that ‘the task of the guardianAn exemplarymay be userestricted of this to approach cover onlycan be a foundgiven transaction,in the Finnish Guardianship andAct interests.’ which shallbeproportional to the degree to which such measures affectthe person’s rights by a competent, independent and impartial authority or circumstances,judicialapply body.forthe shortest timeThepossible safeguardsandaresubject toregularreview relatingto the exercise of legal capacity ‘are proportional and tailored to the person’s legal capacity provide for appropriate and effective safeguards exercise DisabilitytoThe Conventionthe of relate ensure that to measures all providesthat that measures international enshrined in community is law the principally in live in to institution. right Article The an in livingand HumanRights Standards: with disabilities. CzechRepublic institutionalon ‘care’, whichperpetuates socialexclusion peopleof the continued in reliance contributor the major to a is arrangements. This living institutions,in whose guardiansare institutionally not bound toadvocate for better custodyminors)withonanalogy adultwould live. The guardian is only obliged to performdeterminethewhere histofunction court Thetheapproval community.from ‘properly’seekrequired tonot the is (by guardian in arrangements living in alternatives restrictive least the Analysis: or seek less restrictive living arrangements for the adult. Indicator 2 Indicator 362 361 360 359 358

Ibid Ibid 12(4). art. ref A/61/611, 2006, December 6 on Assembly Civil Procedure Code, art. 193(3) in conjunction with art. 178(1). art. with conjunction in 193(3) art. Code, Procedure Civil General UN the 8(3). para. 442/99, Act, Services by Guardianship Finnish The adopted Disabilities, with Persons of Rights the on Convention There is no There provision no is the legislation in that requires seekguardian the to , para. 29. para. , 34. para. , Guardians need not promote the welfare and independence of the adult, 3 58 1 3 59 endeavouring to allow the adult to live in the community. the in live to adult the allow to endeavouring and arrangements living in alternatives restrictive least the seeking by guardianship under adult the of independence and welfare interest, the promote to obliged is guardian A Even within a particular matter, this law additionally safeguards This indicator tests the relationship between guardianship 3 60 3 62 consent to marriage or adoption, or make or revoke This has obvious has implicationsThis adults livingfor 1 9 of the Disability Convention and as follows: 3 6 1 human rights and guardianship in the czech republic 63

4 6 3 In addition, the In addition, 66 , , the principle of 3 4 Although living arrangements living arrangements Although 3 6 3 There areno moreprovisions, detailed 65 3 The guardian must manage the assets of the adult in mannera that benefits the adult under guardianship. There is only a vague obligation on guardians to manage the assets of the the of assets the manage to guardians on obligation vague a only is There , art. 193(2). As a general rule, ‘the court supervises the administration of the [adult’s] of the [adult’s] the As administration court supervises a rule, ‘the general Council of Europe DisabilityAction Plan 2006, op cit, para. 3.8.3(vi). Principle 6(2). Civil Procedure Code, art. 193(1). Ibid Persons with disabilities have access to a range of in-home, residential and other other and residential in-home, of range a to access have disabilities with support to Persons necessary assistance personal including services, support community segregation or isolation prevent to and community, the in inclusion and living an on available community. are the from population general the for facilities and services Community needs. their to responsive are and disabilities with persons to basis equal and where and with whom they live on an equal basis with others and are not not are and others with basis equal an on live they whom with and where and arrangement. living particular a in live to obliged Persons with disabilities have the opportunity to choose their place of residence residence of place their choose to opportunity the have disabilities with Persons

c. b. disabilities of this right and their full inclusion and participation in the community, community, the in participation and inclusion full their and right this of disabilities that: ensuring by including a. disabilities to live in the community, with choices equal to others, and shall take take shall and others, to equal choices with community, the in live to disabilities by measureswith to persons fullfacilitate enjoyment andeffective appropriate States Parties to this Convention recognize the recognize States Parties to equal this right of Convention all with persons 363 364 365 366 Indicator 22 apart from reporting requirements (see Indicator 28), and the guardian must submit submit must guardian the and 28), Indicator (see requirements reporting from apart his to the of court a final balancesheet afterof endthe exercise guardianship. the on reports periodic provide to guardian the request also may court property exercised by the guardian, and takes necessary and suitable measures in order order in measures suitable Analysis: and necessary takes and guardian, the by exercised property to and the determine preserve property’. Conclusion: person. that for guardianship under adult proportionality dictates that, dictates in a all that be least course should adopted decisions proportionality protection. adequate providing while freedom and rights adult’s the restricts based quality service provision and alternative housing models, which enable a move move a enable which models, housing alternative and provision service quality based care living’. to community from institution-based The 2006 Council of Europe Disability Action Plan sets out a European-wide policy policy community- European-wide a out ensure sets Plan ‘to Action Disability countries Europe of on Council calling 2006 The decade next the for disability on framework

Living independently and being included in the community the in included being and independently Living are are not expressly addressed in Recommendation No. R(99) 64 mental disability advocacy center adult under guardianship, it does state that ‘the No.propertyR(99) of the incapable adult should legalregulations by which to monitor aguardian’s actions. While Recommendation guardian misuse the assets of the person under guardianship; and thein provisionadult ofor clear another interested individual Humanto Rights bring Standards: claims against a guardian should that also Indicator 2 adult’s(seetheproperty managing torelated dutiesbreaching by caused damage mines the amount of such remuneration. payment propertyalso andfromrevenue the adult’softhethe detercourt The assets. managing to related expenses for reimbursed be to entitled is guardian The acquisition of inheritance. managementincludes selling,buying, transferor property,of and estate,real cars, of what ‘ordinary matter’ means. totheadult (byanalogy with custody onminors). order to obtain such permission, the action related to the property mustis be‘other of benefit than ordinary matter’, the guardian must seek permission of the court. Guardians are obliged to administer the adult’s property. If there is a situation which to a significant extent onthe attitude of a particular court. functions. fail to perform their duties would strengthen legislation’. alsoadopted this approach and recommends that ‘[s]pecifying penalties ifguardians includingacts or expenditures that do not directly benefit the adult. The WHOhas misappropriationof the funds or property ofadult an under guardianship, arguably This principle suggestsguardian that shoulda be held liable for mismanagement or loss or damage caused by them to incapable adults while exercisingwelfare’. their functions’. be managed and used for the benefit ofthe person concernedand to secure his or her 376 375 374 373 372 371 370 369 368 367 Jehlička See dare to care, op cit, p. 43. p. cit, op care, to dare Ibid 209. p. 2004, Ibid WHO Resource Book on Mental Health, Human Rights and Legislation: Stop Exclusion, Exclusion, Stop Legislation: and Rights Human Health, Mental on Book Resource WHO 20(1). Principle 8(3). Principle 420. art. Code, Civil 179. art. with conjunction in 193(3) art. Code, Procedure Civil author). by added (emphasis 28 art. Code, Civil 3 7 4

. . 3 Kaňka, Principle 20 further provides that a guardian should be held liable for ‘any 4 67 says little regarding the guardian’s role as manager of the finances ofthe The contentand the intensity ofthe supervision ofthe guardian depend

O., 4

R., Švestka ). 3

7 Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná 3

J., 3

7 Škárová The importance ofthis standard istwofold: inthe ability of 1 3 70

M., According to case-law, the phrase related to asset

Spáčil 3 72

J.: The isguardian also responsible forthe

Občanský 3 69 However there isnodefinition

zákoník 3 76 , p. 16. p. ,

–

komentář,

C.H.Beck, 3 68 In 3 75 -

human rights and guardianship in the czech republic 65 , , and 4 79 3 Unfortunately, the Unfortunately, 1 8 3 there is no obligation for the guardian to ever meet meet ever to guardian the for obligation no is there 77 3 also provides that a representative or guardian should should guardian or representative a that provides also A cornerstone A of No. cornerstone R(99) Recommendation 4 are not defined in the law. law. the in defined not are A of second benefit important requiring guardians to visit The guardian is obliged to visit and confer with the adult periodically. A guardian’s decisions are periodically reviewed by anobjective body and the guardian is held accountable forall decisions. 78 the court may also order the guardian to submit periodic reports reports periodic submit to guardian the order also may court the 3 80 3 3 4 Legislation does not sufficiently ensure that a guardian’s decisions are decisions ensure that does guardian’s anot sufficiently Legislation Guardians do not need to visit and periodically confer with the adult. the with confer periodically and visit to need not do Guardians . As stated above, Code of Civil Procedure provides that at the of end the provides Code of As Civil Procedure above, stated Law is silent on periodic visits and contact between the guardian and the and guardian the between contact and visits periodic on Law is silent Civil Procedure Code, art. 193(2). Principle 9. Section 313(b)(i). Civil Procedure Code, art. 193(2). Ibid

378 379 380 381 377 Indicator 2 Indicator 2 asset management; asset guardianship. the of course the during activities his/her about report such of contents Analysis: on the account a final submit to required is guardian the relationship, guardianship Conclusion: held are guardians the that provides Law body. objective an by reviewed periodically decisions. their for accountable ward and maintain sufficient contact with the ward to know of the ward’s capacities, capacities, ward’s the of know to ward the with contact sufficient maintain and ward health’. mental and physical and opportunities, needs, limitations, individual’s living situation and living situation the individual’s care and As services provided. a best practice example, the American Uniform Guardianship and the with acquainted Protective personally Proceedings remain or Act ‘become must guardian the that provides give the adult sufficient information concerning major decisions so decisions major thatconcerning he give or the information she adult sufficient may express a view. an is they individual represent to allow them to gain a full of understanding the under guardianship remains central to the decision-making process. Thisremains under guardianship process. central to includes the possible. decision-making whenever consideration due wishes adult’s the give to consultation effective R(99) No. Recommendation Human Human Rights Standards: systems protective is person-centred generally, the need to ensure that the adult adult. Even though the courts may request the guardian to provide periodic reports reports periodic provide to guardian the request may courts the though Even adult. functions, his of exercise the on adult. the Conclusion: Analysis: 66 mental disability advocacy center mechanisms must identify the guardian’s duties (as discussed in Indicatortheaffairs of 20),incapable as adults’. well maltreatmentnegligencerepresentativesorshouldapply toothersinvolved and in adults under their care and, in particular, that ‘the laws on liability for mustwrongfulberesponsible acts, for their actions andanyloss ordamagecaused bythem tothe decisions of representatives’. adequatebe controloperation theof measuresofprotectionof and acts theof and Human Rights Standards: the so-called ‘provisional collision guardians’. exacerbated by the fact that the courts are reluctant to appointincentive) ‘collisioninitiateto proceedingsanyguardians’ (andguardian.theagainst evidence This situation littleor further is is there thus and loose, rather supervision is the orreviewed on behalf of the person concerned, the guardian’s decisions are Ineithersum, even though notthe guardian periodicallyis in theory held accountable for theall decisions ceased to exist as well as a property benefit gainedreason, from unfaira performancesources’. from a null andenrichment’ void legalis definedact, asa a performance‘property benefitfromadult’s gaineda legalfrom assets, titlea performance he/she that iswithout obliged unjustified the detriment benefiteda enrichment an the guardian of tolegal from thereturn to If the enrichment to the adult. tothe asset management. The guardian is held liable for the damage caused by any failure in his/her duties related (or entities such as non-governmental organisations) adultthink other peoplethe or thatcomplaint guardian. If the thea against file guardianship torights of the adult Analysis: omissions, but the procedure is weak. Conclusion: as providing accessible and workable procedural guarantees. Indicator 25 Indicator 387 386 385 384 383 382

Ibid Ibid Ibid Principle 20. Principle 16. Principle 420. art. Code, Civil The law does not provide for a specific mechanism for the adult under adult the specific mechanism for a provide for not does law The , art. 451(2). art. , 451(1). art. , . There is a complaint mechanism to trigger review of aguardian’s acts or guardian’s acts or omissions. or acts of guardian’s review triggers that exists procedure complaint A 3 82 3 Therefore, general provisions on the civil liability apply. Recommendation No. R(99) 86 The Recommendation goes on to specifythat guardians 3 87 To meaningfully comply with this measure, review 4 specifiesthat ‘[t]here should 3 8 4 The ‘unjustified 3 85 3 8 3

human rights and guardianship in the czech republic 67

4 89 3 968, 968, 1 apply by analogy. apply 88 3 92 3 As to the consequences, there are neither specific specific neither are there consequences, As the to 90 3 A finding of incapacity and placing an adult under 1 9 3 , art. 193(3). , art. 178(1). Civil Procedure Code, arts. 176-179 and 180(1). Judicial decision R 77/68. See, for example,Alaska , Stat. §13.26.125 (Bender 2005). Ibid Ibid Necessity of Guardianship and Alternatives (Indicators 26-29)

389 390 391 392 388 to to the extent necessary to periodically, the accomplish task reviewed of people. of vulnerable are protection arrangements guardianship that paramount is it Therefore, require. conditions as terminated or modified and rights to exercise decision-making to the greatest extent possible. Theof last group possible. to extent the greatest decision-making to rights exercise reflect theneedindicators forto frameworks guardianship recognise the dynamic be should utilized only as nature of time. over Guardianship capacity as long and a a last that human resort. Legislation is rights with norms international compliant mental with to individuals protections provide that alternatives for provides usually adult’s the preserve and nature in intrusive less are alternatives these but limitations, The last group of indicators (26 to 29) examines legal alternatives to guardianship. to guardianship. legal(26toexamines 29) alternatives ofThe indicators last group Because of its and be should intrusive nature, guardianship personal used only as appoint a successor, or terminate the guardianship. the terminate or successor, a appoint 2.6.6 may be found in typical state legislation from the United States, which provides that that provides which States, United the from legislation state typical in found be may amend or a guardian of a decision amend and review to court can the ask adult the and guardian a remove guardian, the of responsibilities the or plan guardianship the guardianship itself. MDAC maintains that a person under guardianship should also also should by guardianship taken under person a that actions maintains or MDAC itself. decisions guardianship of review independent an obtain to opportunity the have indicator this meet would that example legislative a Therefore, as well. guardian the does state that an adult who has been deprived of his or her legal capacity ‘should be be ‘should capacity legal her or his of deprived been has who adult an that for state need does the of review to relate to appears provision this review’ a demand to entitled guardianship should not preclude the adult from accessing the court or other authorised authorised other or court the accessing from adult the preclude not should such guardianship for However, guardian. the of decision a of review independent request to body the have must legal body to right the access to court any or have force, authorised amend or reverse the guardian’s decision. Whilst No. Recommendation R(99) carry out duties. out carry Human Rights Standards: courts held that the judge is entitled to discharge the guardian from his function when when function his from guardian the discharge to entitled is judge the that held courts properly to in failed guardian the where cases in especially and exist, reasons serious The person or entity wishing to make a complaint may file an application to the court court the to application an file may complaint a make to wishing entity or person The However, law. in decision it. with deal to a is obliged such which for grounds nor guardian a of dismissal on provisions as a as early to Indeed, court in take this action. preventing is nothing there have been violated, the provisions on of the minors custody the provisions been violated, have 68 mental disability advocacy center ifthe first criterion is not met,the court may mandate attempts to involve a support ‘reasonableand efforts have involvebeen made to the support network’. appointedbe determinedunlessisit whethersupportindividual thea has network Living with a Mental Disability Act specifiesthat a substituteindicator.legislationexamplethis ofManitobameets The thatdecision Vulnerable Persons maker may not instructiveprovidesarrangementsCanadamodelfroman exhausted. beenA have formal less other suggests unless person a established It for be alternative. not should guardianship that restrictive least or intervention, necessary minimum of deprivationprincipleasthe guardianshipcapacityonlegalbasedandshould of be RecommendationR(99)No. exist and are utilised. supporteddecision-making.alternativesthatguardianshipdo tois Implicit this in paradigm shift away from capacity’.guardianship legal models exercising their inand require towards may theysupport systems which encourage appropriatetakeshall measuresprovideto personsaccessby withdisabilities theto Standards:RightsHuman impinging on rights and freedoms, objectiveothersameprovisionswithachievewithouttherights humanto seeking meetthecriterion ofnecessity which requires comparisona ofthe means restricting less Constitutional a Court has stated offer that any encroachment may guardian’ of a ‘special fundamental right of must instituterestrictive alternative, the that suggested been has It are other mechanisms such as powers-of-attorney or advance directives. guardianship.supportedAssistedor decision-making notrecognisedneitherisand partial or plenary placement under than other areas some in capacityfunctional Analysis: requirement to exhaust any other means of protection before imposingConclusion: guardianship. Indicator 26 Indicator 395 394 393 397 396

Kaňka, (1993). 12(3). art. ref A/61/611, 2006, December 6 on Assembly Vulnerable Persons Living with a Mental Disability Act, R.M., ch. 29, para. 49(a)-(b) 49(a)-(b) para. 29, ch. R.M., Act, Disability General Mental a UN with the Living by Persons Vulnerable adopted Disabilities, with Persons of Rights the on Convention 3/02. US Pl. No. Decision 4/94. US Pl. No. Decision Legislation doesnotprovide protectiveany measuresfor people wholack Less restrictive alternatives to guardianship do not exist. There is no is There exist.not restrictivedo guardianshipalternatives Lessto

R.,

Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná 3 9 and are demonstrably exhausted before a guardianship is is imposed. guardianship a before exhausted demonstrably are available and are guardianship to alternatives restrictive Less 3 but this proposal has not been implemented in practice. The The The Disability Convention provides that ‘States Parties 4 states in Principle 5 that a protectiveasuchmeasure Principlethat in states 5 3 9 4 and adopting the ‘least onerous solution’. , p. 5; see also Part 2.4.4. Part also see 5; p. , 3 96 This encourages a encourages This 3 97 Further, 3 95 human rights and guardianship in the czech republic 69

4 00 . 4 4 court

Partial 02 4 the

Similarly, in Similarly, 98

3 1 Yukon 0

4 in

Similarly,

99 (1992)). 3

(Yukon).

32(1)

para.22(3)

para.

30,

A,

ch.

S.O.,

Schedule

Act, 21,

the person involved and address the varying degreescapacity. of Guardianships are tailored to the individual needs of ch.

S.Y.

8 and 20 above), which are mostly determined by the severity of the the of severity the by determined mostly are which above), 20 and 8 Decisions 1

Act

Partial guardianship are supposed to be tailored to meet the needs of the the of needs the meet to tailored be to supposed are guardianship Partial Although the Civil Code recognises three categories of guardianship, The Finnish Guardianship ServicesAct 442/99, para. 18. See also Part 2.4.4. Civil Code, art. 10(1) and (2). Civil Procedure Code, art. 193(2). Vulnerable Persons Living with a Mental Disability Act, R.M., ch. 29, para. 50(2). a physician may order a hospitalization; communityalso the court treatment may not plan appoint a unless as guardian for an an the individual’s alternative alternative property course to psychiatricis ‘less unavailable. restrictive (Mental to Health the Act, Substitute person’s S.O., decision ch. M.7, making para. rights’ 33.1 appointguardiannotmaya unless ‘forms andavailable of support assistanceand lessintrusive para. 33.7 (1990); thanguardianship have been tried or carefully Adultconsidered.’ Protection and Decision Making This approach is also followed in other Canadian jurisdictions. For example, in Ontario

399 400 401 402 398 Indicator 27 scope for individually-tailored decisions. In practice, the degree of individual tailoring tailoring individual of degree the practice, In decisions. individually-tailored for scope guardianships. partial of case in even other the to court one from varies to to define thescopeof rights andofduties the guardianin thedecision. no with that the supposes guardianship court assesses and the approach abilities needs functional of uniform blunt, a takes guardianship plenary Conversely, adult. the In the case of partial guardianship, legislation makes it possible to individually tailor tailor individually to possible it makes legislation guardianship, partial obliged of case is the In court the since adult the of needs the to guardianship the of conditions the diagnosis of the person concerned and (in)ability to made decisions. made to (in)ability and concerned person the of diagnosis this indicator this will indicator discuss only the two types of since both ‘regular guardianship’ the ‘special guardianship’ and ‘collision guardianship’ are ipso facto tailored to the needs individual of the and person involved used only scarcely in practice. person concerned. person Analysis: Conclusion: are not sufficient to safeguard the adult’s interests. adult’s the safeguard to sufficient not are Finland a guardian may be appointed without restricting the adult’s legal competency; competency; legal adult’s the restricting without appointed be may guardian a Finland are Thea decisions court legal may separate onlyprocedure. incapacity declare an alternatives listed the that established has it after capacity legal as lacking individual network as an alternative to appointing a substitute decision maker. decision a substitute to appointing as an network alternative Regular guardianship consists of two types: partial and plenary (see also 2. Part (see two of types: partial and plenary consists Regular guardianship and Indicators Indicators and 70 mental disability advocacy center court a final balancefinal courtsheeta the at end guardianship, of obligedis merely performtofunction his ‘properly’. isno limitation on the duration of guardianship once it is established. The guardian Analysis: weak safeguard. a is such as contentbut and thecontrol significantly periodicity this variesandof consider if the need for limitation or deprivation of the Conclusion:legal capacity is still necessary competence regarding legal affairs. a as double-competence described been regime, has where This thecaretaker actions.andindividual simultaneously legal for consent have additional provide to or in the circumstances it is necessary for the caretaker to legally representAdditionally, thethe individual individualmaintains legalall rights; the court determines whether tasks the court has decided the concerned person cannot manage without assistance.caretaker(Betreuer), a carriedout bybe to whose responsibility limitedthosetois and ‘care with assistance’ guardianship(Betreuung) replacedprogrammes, which have include individualised reformsan support instance,order for Germany, In tailored to ensure that it best suits the interests of the person whohealth is subjectand legislation to it’. handbook, which states that ‘any [guardianship] orderadequate must be protection. act, and the rights and freedoms of the person only to the extent necessaryspecific to provide needs ofthe adult. In essence,guardianship tothedegree shouldoffunctional capacity oftheadult restrict andshould tailoredbe the tomeetthe legalcapacity to lesser alternatives have been exhausted, it should beproportionality imposed suggests in that wherea mannerguardianship is deemed proportional Standards:to be necessary, after Rightsall Human Indicator 28 Indicator 407 406 405 404 403

Ibid Europe’, Western and 54. at 47, Netherlands Psychiatry and Law of the J. Int’l 20(1) in in Models discussed BGB, ‘Guardianship 1902 (1997) See K. importance. Blankman, or risk high with decisions for Civil authorization judicial German seek must the caretaker the of that is note of sections Also BGB. 1897 relevant and BGB 1902 The are Code 378-9. 368, Family, the and Policy Law of 43. p. cit, op care, to dare Exclusion, Civil Procedure Code, art. 193(3) in conjunction with art. 178(1). art. with conjunction in 193(3) art. Code, Procedure Civil J. Int’l 16, Perspective’, Comparative A – Kaleidoscope Guardianship ‘Elder I. Stop Doron, Legislation: and Rights Human Health, Mental on Book Resource WHO WHO, 40. para. R(99)4, Recommendation to Memorandum Explanatory No periodicNo reviews guardianshipofrequiredare law. by Similarly, there , art. 193(2). art. , There is no periodic review of guardianship. The court is obliged to obliged is court The guardianship. of review periodic no is There 4 0 3 only as long as appropriate. as long as only continues and reviewed periodically is Guardianship Internationally this standard is endorsed by the WHO’s mental rnil 6 f eomnain o R(99) No. Recommendation of 6 Principle 4 05

4 06 The guardian The must sendthe 4 07 whichmay wellonbethe 4 4 on 0 4

human rights and guardianship in the czech republic 71

413

This 09 4 411 .2 above, the .2 above,

4 0 41 (6) requires that, requires (6) 1

2 41 However, as noted in 2. Part as noted However, 414 also takes this approach by providing that measures also by providing takes this approach 4 The Disability Convention sets out an appeal requirement requirement appeal an out sets Convention Disability The An adult subject to guardianship has the right to request review, modification and/or termination of guardianship.the ), which says that ‘States Parties shall ensure that all measures that relate to to relate that measures all that ensure shall Parties ‘States that says which ), The adult has the right to request restoration of legal capacity (termination (termination capacity legal of restoration request to right the has adult The 4 but regular reporting is not mandatory. However, the content and length length and content the However, mandatory. not is reporting regular but 2( 08 The procedure for restoring legal capacity may be initiated by the adult. by the initiated be may legal capacity restoring for procedure The , art. 22. . 4 1 UN Resolution 46/119, op cit, Principle 1, Fundamental freedoms and basic rights. Civil Procedure Code, art. 186(3). Civil Code, art. 10(3). See also Indicator 20. Convention on the Rights of Persons with Disabilities, adopted by the UN General Assembly on 6 December 2006,A/61/611, ref art. 12(4). Ibid Ibid Recommendation R(99)4, Principle 14.

411 412 413 414 408 409 410 Indicator 29 This provision represents an exception to the rule that an adult lacking full legal capacity capacity legal full lacking adult an that rule the to Analysis: exception an represents provision This by the guardian. be represented must of guardianship), but the adult may be prevented from filing a repetitive petition for for petition repetitive a filing from prevented be may adult the but guardianship), of year. one to up Conclusion: Conclusion: reviewed at reasonable intervals prescribed by domestic law’. domestic by prescribed intervals reasonable at reviewed should be should to the whether periodically reviewed determine need still exists. regarding capacity and the ‘[d]ecisions need for a shall be personal representative such as guardianship should be of limited duration if possible and, at the very least, least, very the at and, if possible duration limited of be should as guardianship such abuse in accordance with international human rights law. Such safeguards shall ensure ensure shall safeguards Such law. rights human review regular to international with subject are accordance in […] abuse capacity legal of exercise body.’ the to judicial relating or measures that authority impartial and independent competent, a by Human Rights Standards: Rights Human prevent to safeguards effective and appropriate for provide capacity legal of exercise the The law states briefly that ‘the court shall change or cancel the limitation or deprivation deprivation or limitation the cancel or change shall court ‘the that briefly states law exist’. The longer no or changed have thereto leading reasons if capacity legal the of and the intensity of the supervision of the guardian depends to a significant extent on extent significant a to depends guardian the of supervision the of intensity the and court. particular a of attitude the of these reports is unspecified. Thus the such reports do not provide sufficient guidance guidance sufficient provide not do reports guardian, such the Thus unspecified. is content The reports justified. these is of guardianship the of continuation the whether decision the for adult’s death. In addition, the courts may also request the periodic reporting of the of reporting the periodic also may request the courts In addition, death. adult’s standard is also found in the Mental Illness Principles. Principle Principle Principles. is Illness in standard also the found Mental in Article Article in Recommendation No. R(99) No. Recommendation 72 mental disability advocacy center legalcapacity may apply for restoration, andthat theprovision does not allow those Finally, a strict reading of the law would mean that only adults fully deprived of their retroactive effect. notmettimethedecision,oftheat quashdecision.courtthethewill if it is established that the conditions for limiting or depriving the legal whencapacity werethe decision of the court is based on invalid theor defectivebasis ofexpert an opinion.incorrect assessment of the adult.must still have the duty to quash ex officio the decision on incapacitationGuardiansrequestalsocan adoptedrestoration on oftheadult’s legalcapacity. Similarly, courts shorten this period according to the circumstances of the can individualitbut yearcase. one ofperiod repetitiveprevent maximumapplicationthe thefor year. one of limitmaximum time-bar, the reasonableness criterion of of the by limited is repetitive applications. withinthe discretion of the court whether it decides to deprive the adult from filing beexpected. petition (which is obvious); and (2) no improvement of the adult’s mental health can it has been reported that the courts are generally reluctantguardian’, to do so. appoint someone else. In order Thereto isresolve no legalsuch opportunity a situation,foran adult the to courtrequest may a courtappoint to removea the‘special guardian strict and reading may be legally correct but is surely a mistake in legislativedeprivedpartiallyapplyrestoration.beenforto capacitydrafting.has whose legal forup to one year from the previous application. repetitiveclaims. rightinitiateto restoration time-barcapacitylegalofqualified conditionisa by on conditions must be met cumulatively:metconditions( bemust 428 427 426 425 424 423 422 421 420 419 418 417 416 415 Kaňka, Winterová, Ibid Ibid Ibid Ibid Ibid Ibid Ibid Civil Procedure Code, art. 32(2). art. Code, Procedure Civil 29. art. Code, Civil 190. art. Code, Procedure Civil 190. art. Code, Procedure Civil Code. Procedure Civil the of 186(3) Art. vydání, 4 , art. 30. art. , 186(3). art. , . . . . . 25 ‘collision guardian’, 41

R., Praha, 7 Furthermore, even when these twoconditions are met, it isstill fully

Současná úprava institutu opatrovnictví v ČR v opatrovnictví institutu úprava Současná A. 41

5

et The adult maythus be prevented fromfiling a subsequent claim Linde,

al.: 41

8 Občanský However, when the court opts for deprivation, its discretion

2005, 4

20 p. 4 n te wrs te or ne nt automatically not need court the words, other In

26 517. soudní or a so-called ‘procedural collision guardian’,

řád 1

) the court must have rejected a previousrejectedhavea must court the ) s

vysvětlivkami 4 2 1 41 This situation mayarise for instance 6 To prevent repetitive claims, two , p. 5. p. ,

a

judikaturou, 41 9 n ultimately by and 4 28

2.

aktualizované 4 23 This has a has This 4 2 4 4 Such a Such 22 4 Thus, 27 but human rights and guardianship in the czech republic 73 The ECtHR has ECtHR The 29 4 , op cit. The right to fair trial in the determination of civil rights is rights civil of determination the in trial fair to right The , op cit. As with several other indicators, it is especially important that the the that important especially is it indicators, other several with As 0 43 Winterwerp the Netherlandsv. Matter Slovakia v.

429 430 to bring cases to court. court. to cases bring to right of review be prescribed by legislation. In the absence of such provision the adult adult the requests. so provision adult such of absence the In legislation. by prescribed be review of right standing legal having not of result the as court the accessing from precluded be may set out in Article 6 of the ECHR, and includes legal capacity issues. capacity legal includes and ECHR, the of 6 Article in out set asserting rights, privacy on ECHR the 8 of Article engages guardianship that ruled if the justified particularly is guardianship or capacity legal of re-examination a that Human Rights Standards: Rights Human 74 mental disability advocacy center human rights and guardianship in the czech republic 75 Partial/limited guardianship is 8. 1 See psycho-social disability. disability. psycho-social See This phrase refers to people who have intellectual limitations limitations intellectual have who people to refers phrase This Thisterm is to applied who people have been with, diagnosed erminology T . A legal through established a relationship court or administrative 4 A guardian is a person appointed by the appropriate entity to act in the entity by the appropriate A appointed is guardian a person A legal term embodying the notion that for a person to make decisions and and decisions make to person a for that notion the embodying term legal A A X E An adult is a person who has reached the legal age of majority. In the Czech Czech the In majority. of age legal the has reached who a is person An adult Republic the age of majority is is majority of age the Republic established when established a person who has some capacity to make or decisions take or labelled as having psycho-social disabilities (mental health problems) and/or and/or health problems) (mental disabilities as or labelled having psycho-social disabilities. intellectual process process between a person to deemed to appointed person the lack and the decisions personal make to requisite legal capacity completely) (either or partially to referred is also sometimes Guardianship behalf. her or his on measure’ decisions make ‘protective of form one is Guardianship Recommendation in decision-making.’ Ministers of ‘substitute as Committee Europe of Council the by referenced R(99) No. place of an adult who lacks legal capacity to handle The his own affairs. to or her handle lacks legal of capacity who an place adult entity may be a appropriate either court or a depending guardianship agency, to legislation the on and/or type the national jurisdiction of case. under The guardianmay be authorised a a relative, person other any or guardian professional capacity. lack to deemed been has who person a of behalf on capacity this in act instead. However, as the with instead. However, (see the below), phrase health problem’ ‘mental English into from and languages Europe across Asia central translations literal retardation,’ as ‘mental such terms example, (for pejorative and on). so and outdated be mind’ may ‘weak ‘idiocy,’ comprehension,’ ‘abnormal ‘imbecile,’ mental state, the ability to understand the decision presented, consider alternatives, alternatives, consider presented, decision the understand to ability the state, mental The decision. the communicate and decision the of consequences the appreciate interchangeably. used frequently are ‘competent’ and ‘capable’ terms of varying use types the disability’ term ‘learning countries Some and degrees. take actions take that hea legal have oractions effect, must binding, shehave therequisite NN Partial Partial guardianship (or limited guardianship): Mental health problem: problem: health Mental Mental Mental disability: Guardianship: Guardian:

Intellectual disability: Intellectual Glossary of Capacity: Adult: A 76 mental disability advocacy center Ward: Trustee: Supported decision-making: Psycho-social disability: guardianship:Plenary Instead, MDAC simply useshospital. ‘adult’adepartment ofa ormean ‘person toEnglish in concerned.’used also isindividual. Itthe who is under guardianship. MDAC prefers not to use this term as it dehumanises relationships, such as in cases of partial incapacity. in other jurisdictions (including, for example, Bulgaria), it is someusedjurisdictions, only fortheterm certain‘trustee’ isusedinterchangeably withguardian, but persontrusteeais who maintains fiduciary a relationshipanother to person. In capacity is, in fact, able to make personal decisions. factthatwith proper support, persona who might otherwise bedeemed tolack ‘psycho-social disability,’ a term MDAC maintains is less stigmatizing. or‘mental disorder.’ For purposes of consistency, suchall terms aretranslated as sometimesreferred to asusers of mental health services, having a ‘mental illness’ include people with personality disorders. People can mentalandillness,diagnosed,beenhave perceivedalabelledhaving or as with psycho-social disabilities are the Rights of Persons with Disabilities). The term is meant to includeof Psychiatry people used this term who throughout negotiations on the UN Convention on community(for example, theWorld Network ofUsers, Ex-Users andSurvivors guardianship. behalf.herownPlenaryormostguardianshiphisencompassingthe is formof on actions any take sufficient to capacity lack completely capacity or lack to vary from country to country or within the same country. guardianshipisamatter for national legislation and/or courts to decide and will person may or may not be allowed to do for himself or herselfaction onorwhenhisher own behalfdeemedandis undertohave capacity.partial partial a What The term commonly usedEnglish-speaking in countries to refer person a to Although its specific meaning will be defined in law, in general terms, a general terms, law, in defined in be will specific meaning itsAlthough Typeguardianshipdeemedestablishedofperson is when a n ditdy ra tr crety sd y h global the by used currently term broad admittedly An hs lentv t gadasi i peie o the on premised is guardianship alternative to This human rights and guardianship in the czech republic 77 qualified professional and based upon recent, objectiveinformation, including an in-person evaluation. A finding of incapacity requires a demonstrable linkbetween the underlying diagnosis and the alleged inability to make independent decisions. A finding of incapacity is based upon sufficient evidenceand serves the interests of the adult. An adult has a right to free and effective legal representation throughout guardianship proceedings. An adult may not be detained in order to be subjectedan to evaluation of his or her functional capacity. An adult has the right and opportunity to present his/herown evidence (including witnesses), and to challenge the opposing evidence. No adult is deprived of legal capacity without being the subject of an incapacity assessment, conducted by a fundamental freedom of people with mental disabilities. Legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it. An adult has a right to actual notice of, and to be present and heard at all proceedings related to the application for deprivation of his or her legal capacityand appointment of a guardian. The legislative purpose or preamble to the law encompasses respect for the human rights, dignity and able of the Indicators 3 4 1 T B X E Indicator Indicator Indicator 8 Indicator 9 Indicator 7 Indicator 5 Indicator 6 Indicator 2 Indicator NN Summary A 78 mental disability advocacy center Indicator 20 Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator 1 1 1 1 1 14 13 1 11 1 5 9 7 8 6 0 2 A person under guardianship is not precluded from from precluded not is guardianship under person A associate. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By life. of family respect to and family, a found to marry, to right the exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By property. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By work. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By rights. political exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By guardian. a of appointment the and/or incapacity of finding a appeal to right the has adult An conflict. a such of appearance the or adult, with the interest of conflict a have not should guardian The considered. are adult the of feelings and wishes and the criteria objective on based is guardian a of Selection the adult subject to guardianship needs assistance. needs guardianship to subject adult the which in areas those to limited and defined clearly are guardian the of obligations and authority of scope The possible. whenever to adhered wishes his/her have and decisions, major about consulted be must guardianship to subject adult An capacity. functional has he/she where areas those in decisions making human rights and guardianship in the czech republic 79 An adult subject to guardianship has the right to requestmodification and/or termination of the guardianship. Less restrictive alternatives to guardianship are andavailable are demonstrably exhausted before a guardianshipimposed. is Guardianships are tailored to the individual needs theof person involved and address the varying degreescapacity. of Guardianship is periodically reviewed and continues only as long as appropriate. manner that benefits the adult under guardianship. The guardian is obliged to visit and confer with the adult periodically. A guardian’s decisions are periodically reviewed by anobjective body and the guardian is held accountable forall decisions. A complaint procedure exists that triggers review guardian’sof acts or omissions. A guardian is obliged to promote the interest, welfareand independence of the adult under guardianship by seeking the least restrictive alternatives in livingarrangements, endeavouring to allow the adult to thelive community.in The guardian must manage the assets of the adult in a 3 4 1 Indicator 2 Indicator 2 Indicator 28 Indicator 29 Indicator 27 Indicator 25 Indicator 26 Indicator 22 Indicator 2 Mental Disability Advocacy Center (MDAC)

The Mental Disability Advocacy Center (MDAC) advances the human rights of adults and children with actual or perceived intellectual or psycho-social disabilities. Focusing on Europe and central Asia, we use a combination of law and advocacy to promote equality and social integration. We have participatory status at the Council of Europe and are a cooperating organisation of the International Helsinki Federation for Human Rights.

Our vision is for a world that values emotional, mental and learning differences, and where people respect each other’s autonomy and dignity.

Chair of the Board Jan Pfeiffer (Czech Republic)

Board of Directors Peter Bartlett (Canada and UK)  Lilla Farkas (Hungary)  Ivan Fišer (UK and Serbia) Clemens Huitink (The Netherlands)  Robert Kushen (USA)  Anna Lawson (UK) Dainius Puras (Lithuania)

Executive Director Oliver Lewis

Staff Csilla Budai (Projects Officer)  Barbora Bukovská (Legal Director)  István Fenyvesi (Publications Consultant)  Jan Fiala (Legal Officer)  Iain Giles (Finance Director) Gábor Gombos (Senior Advocacy Officer)  Anna Hornyik (Office Administrator) Dániel Kaderják (Programme Assistant and Researcher)  Sarolta Kozma (Accountant) Victoria Lee (Legal Officer)  Yuri Marchenko (Legal Officer) György Péchy Jr. (IT Consultant)  Orsolya Süveg (Office Cleaner)

Guardianship Researchers Zuzana Benešová (Czech Republic)  Nina Dadalauri (Georgia)  Meder Dastanbekov (Kyrgyzstan)  Vidan Hadži-Vidanović (Serbia)  Slavka Nikolova Kukova (Bulgaria) Petar Sardelić (Croatia)  Anna Smorgunova (Russia)

Legal Monitors and Partner Dmitri Bartenev, St. Petersburg, Russia  Aneta Mircheva, Sofia, Bulgaria (Bulgarian Helsinki Organisations Committee)  Eve Pilt, Tallinn, Estonia (Estonian Patients Advocacy Association)  David Zahumenský, Brno, Czech Republic (League of Human Rights)

Guardianship Advisory Board Robert M. Gordon (Canada)  Georg Høyer (Norway)  Krassimir Kanev (Bulgaria) Mark Kelly (Ireland)  Jill Peay (UK)

Legal Advisory Network Peter Bartlett (Canada and UK, Chair)  Paul Bowen (UK)  Ira Burmin (USA)  Luke Clements (UK)  Lilla Farkas (Hungary)  Yonko Grozev (Bulgaria)  Aart Hendricks (The Netherlands) Lovorka Kusan (Croatia)  Robert Kushen (USA)  Olivier De Schutter (Belgium)  Vesselina Vandova (Bulgaria)

Recent Volunteers and Priscilla Adams (USA)  Wendy Alexander (Trinidad and Tobago)  Jill Diamond (USA) Interns Matthew Francis (UK)  Jana Glogárová (Czech Republic)  Sarah Green (UK)  Jana Hecová (Czech Republic)  Bogdan Maties (Romania)  Jill Roche (USA)  Nicholas Tsang (USA)

MDAC work is funded by Doughty Street Chambers, the European Commission, the Open Society Institute – Budapest, the Sigrid Rausing Trust, and individual donors

MDAC  Rákóczi út 27/B  1088 Budapest  Hungary Telephone: +36 1 413 27 30  Fax: +36 1 413 27 39  Email: [email protected]  Website: www.mdac.info MDAC work is funded by Doughty Street Chambers, the European Commission, the Open Society Institute – Budapest, the Sigrid Rausing Trust, and individual donors

MDAC  Rákóczi út 27/B  1088 Budapest  Hungary Telephone: +36 1 413 27 30  Fax: +36 1 413 27 39  Email: [email protected]  Website: www.mdac.info