Guardianship and Human Rights in Bulgaria Analysis of Law, Policy and Practice 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 Bulgaria
Analysis of Law, Policy and Practice 2007 mental disability advocacy center Website: www.mdac.info Email: [email protected] Fax: +3614132739 Telephone: +3614132730 Hungary 1088 Budapest Rákóczi út27/B Mental DisabilityAdvocacyCenter www.mdac.info website: MDAC’s from Bulgarian and English in available is report This 978-963-87607-3-9 ISBN: reserved. rights All 2007 Center, Advocacy Disability Mental © Copyright of the information contained therein. MDAC. The donors take no responsibility for the content and for any use that may be made the opinions of the donors. Responsibility for the information Thecontained opinions expressedtherein in thislies documentsolely arewith the opinions of the authors and may not reflect from theCouncilofEurope In-kind contributions The SigridRausingTrustand financial contributionsof The researchandpublicationofthisreportwasmadepossible throughthegenerous
human rights and guardianship in bulgaria 5 7 17 61 16 16 16 19 14 14 12 12 13 13 18 51 10 10 67 24 69 70 26 45 25 20 68 66 66 66 22 38 ... .
......
...... Bulgaria ...... ) ...... Incapacitation Procedure Procedure for Appointment of a Guardian Obligations of the Guardian After Guardianship Is Established Principles Throughout Running Legal Frameworks (Indicator 1)
(Indicators 13-17) (Indicators 8-12) (Indicators 18-25) Quality of Evidence Provided the to Court Incapacity in Cases
Procedural Rights During Guardianship Proceedings (Indicators 2-7) Rights the of Adult After Guardianship is Established Necessity of Guardianship and Alternatives (Indicators 26-29) Bulgaria’s LegalBulgaria’s System Introduction Demographic and Social Landscape of Guardianship Law Bulgaria in Guardianship/Incapacity Two-Step Bulgaria’s Process 1.4.1 Stage Legislative one: Review 1.4.1 Stage two: Collection of Data1.4.2 from the Field 2.5.1 Human-Rights Based Assessment Legislation of Bulgaria’s Aims and Objectives Methodology Acknowledgements Method 2.6.1 Guardianship Researching Guardianship Guardianship Files Interviews Court Hearings Court Court Case Files 2.6.4 2.6.5 2.6.6 2.5.2 2.6.2 2.6.3 Indicators for a Human Rights-Based Assessment of Guardianship 2.3 3.5 2.1 2.2 Guardianship Law and Bulgaria in Policy 2.4 2.5 3.4 2.6 3.3 Guardianship Practice Bulgaria in 3.1 3.2 1.3 1.4 3.6 1.1 1.2 1.5
2.
1. Introduction 1. Executive Summary Recommendations Contents
3.
mental disability advocacy center
D:
E:
Guardianship Bodies (Municipalities) (Municipalities) Bodies Guardianship Reviewed Cases Files Guardianship on Case Court Archived Observed Hearings Court TABLES
A: A C:
B:
nne 3.13 3.12 Data Gathering Sheets Gathering Data ofInterviews List Participants and Data of Research Protection on Researchers for Protocol 3.11 3.7 3.8 Glossary ofTerminology Glossary 3.10 3.9 Summary Table Indicators ofthe Summary x es General Comments and the Need for Further Research Conclusions Interviews Access toJustice Role ofGuardianshipOfficesLocalAuthorities Observations andConclusions Description of a Typical Court Hearing 3 3 3 3 3 3 3 3 3.7.1 3 3 3 3 3 .8.10 .8.9 .8.8 .8.7 .8.6 .8.5 .8.4 .8.3 .8.2 .8.1 .7.4 .7.3 .7.2
(Mental Health)Disabilities Typical CourtHearingforAdultwithIntellectualDisabilities Selection ofGuardian Application Guardianship Files Typical CourtHearingforAdultwithPsycho-Social Typical CourtGuardianshipFile Notice ofandRighttoBePresentatCourtProceedings Presenting andChallengingEvidence Detention Link BetweentheDiagnosisandFunctionalIncapacity Incapacity Assessments How JudgesDecideCases Legal Representation
Appeals ...... 154 158 125 149 101 124 121 110 118 113 114 116 84 84 84 88 85 99 99 77 77 98 72 78 96 71 71 75 74 human rights and guardianship in bulgaria
------This This 2. 1 , art. 11 /6 1 y mmar u S ve i ut Convention on the Rights of Assembly on 6 December Persons 2006, A/6 ref with Disabilities, adopted by the UN General c Approximately 85% of people who live under guardianship are under ‘plenary’ ‘plenary’ are under guardianship under who live of people 85% These Approximately entirely. capacity legal of deprived are and guardianship encompassing) (all are people of to subject their arbitrarysignificant, deprivations and automatic
xe these findings are: findings these flected in the practice of the process itself. Indeed, the main findings of the report main report of the the findings Indeed, itself. process of practice the in flected the under people of rights the protect to reveal that Bulgaria is failing obligation in its of important most The urgently. required are reforms that indicating guardianship, (mental health) or intellectual disabilities and little understood by professionals in professionals by understood little and disabilities intellectual or health) (mental in weaknesses a the of legislative series guardianshipvolved have Further, process. These in resulted weaknessesthe law. a throughout of number deficiencies are re The outcome of this examination thatindicates Bulgarian outcome the Thealthough Constitu tion specificallyfor respectprovides for humanthe rights of withpeople disabili psycho-social with people to respect with mentioned rarely are principles these ties, laws, safeguards required to ensure a legal system that fully respects international hu international respects fully that system legal a ensure to required safeguards laws, standards. rights man being viewed through the lens of human rights standards. This legislation does not not does legislation This standards. rights human of the lens through viewed being and statutes ofdifferent number ain scattered is but form, codified in a single exist in these provided are safeguards adequate whether examines report The regulations. assistance are provided, but in which legal rights remain intact. intact. remain rights legal which in but provided, are assistance legislation such guardianship, on legislation domestic of analysis an offers report This are demonstrated in this report, a report that is particularly timely in view of the re the of view in timely particularly is that report a Disabilities. report, with this in Persons demonstrated are of Rights the on Convention UN the of adoption cent and calls for a support where shift paradigm models to humane Convention more in line with current human rights standards. It is these standards, and It is the compli standards, these standards. rights human in with line current this of focus the form that practice in and legislation in them, with Bulgaria of ance laws its guardianship to amend Bulgaria on imperatives moral legal and The report. important insight, into how the guardianship process fully works. works. fully process guardianship the how into insight, important law such to bring regulation in the to area be of guardianship done remains Much to gain a comprehensive understanding of actual practice was denied to MDAC. The The MDAC. to denied was practice actual of understanding comprehensive a gain to reason access an was to simple: quite albeit was vital of sources refused on information insight, an the only offers report this Consequently, confidentiality. of grounds This report is the first work of its kind to look in any depth into laws and practice lawspractice and ofinto in its to look work depth is any kind This report thefirst understand detailed a obtain to possible was It Bulgaria. in guardianship to relating opportunity the However, process. guardianship the on impacting legislation of ing E mental disability advocacy center local and national organisations. social disabilities (mental health problems) and intellectual disabilities,out its as reformwell as processtheir in a way that actively involves and respectswith disabilities people inwith Bulgaria. psycho- MDAC specifically encouragesthe governmentpeopleofrightshuman betterrespect theto thus carry practiceand andguardianship law principled improve recommendations of to series designed a out sets report This have an impact upon guardianship. theBulgariangovernment tocommit itself tofullythereform ofofitsall laws that assistancethoseofsubject guardianshiptheto process observed.was MDAC urges commitmentnoprofessionals ofcases the guardianship processinvolved tothe in Inaddition to the constraints imposed upon MDAC’s research, in many if not most making certain decisions. in support directives, need disabilities who advance with peoplesupported decision-making) example, for (for guardianship to alternatives no are There human rights implications. Professionals involved in the guardianship process have little understanding of its adequate advice and representation to assist them through it. Adults subject to the guardianship process are provided with insufficient access to has led to frequent inconsistency and uncertainty. Theguardianship law is too vagueand lacks clarity: regulation by numerous laws take decisions in the event of future functional incapacity). functional incapacity) or powers of attorney (where an adult specifies a person advanceto directives (where an adult way),specifies structured his a or in (where someone provides helpher decision making wishes assisted in the event offuture supported and as alternatives available, such no are decisions. There make to GuardianshipBulgaria’sis responseonlylegalpeopleto require who assistance inability to enforce them. specifically deprived of certain rights, lacka of proceduralcapacity ensurestheir familylife, to marry, to vote, to associate freely, and to access courts. Even if not humanrights. These include a deprivation their of right to property, to work, to human rights and guardianship in bulgaria ons i t da en limited to merely providing the adult with support and assistance in making making in assistance and support with adult the providing merely to limited decisions. communicating and mustThere be safeguards in placeto theprotect adult againstabuse and exploitation. A support person/network A should support not person/network be without appointed the adult’s consent. There must be only a of relation relationship, trust such between create the not adult and therefore the should supporting court A person/network. is role This adult. the of existence. its behalf recognise on act not should person/network support The The adult retains full legal capacity whilst receiving services from a support support a from services receiving whilst capacity legal full retains adult The person/network. mm Abolish the automatic deprivation of the fundamental rights of adults under under of adults rights of the fundamental deprivation the automatic Abolish to guardianship powers of attorney (where an adult specifies a person to take decisions in case of case in decisions take to person a specifies adult an (where attorney of powers 26). (Indicator incapacity) functional future 26). (Indicator resort last a as only used is guardianship that Requiring – anwhich (in directives advance the legally-binding to right create Providing his specifies oradult her wishes in and caseof incapacity) future functional – – – Creating supported decision-making services. Such services should be based on on based be should services Such services. decision-making supported Creating principles: basic following the – o Maximise autonomy. Ensure that adults retain the right to make decisions in all in decisions make to right the retain adults that Ensure autonomy. Maximise Specifically: capacity. functional have they which in life of areas also protect the adult by: adult the protect also the use of least restrictive alternatives which promote the independence of, and of, the independence promote which alternatives the use of least restrictive Provide alternatives to guardianship: The Bulgarian government should require require should Bulgariangovernment The to guardianship: alternatives Provide c
. . 2. 1 report. The four principle recommendations are: are: recommendations principle four The report. referred to are 29 basic guarantees of a human rights compliant guardianship system system guardianship compliant rights human a of that so guarantees basic here 29 are to given are referred They recommendations. specific after brackets in shown are and the of sections main the in given analysis detailed more their to can refer reader the government commits to change the legislative landscape. With this in mind, MDAC MDAC mind, in this With landscape. legislative the change to commits government indicators if which The government, standards. Bulgarian the to international recommendations of a number basic below makes with line in law the bring would followed, Overall, this report suggests that Bulgarian guardianship laws and practices fail to meet meet to fail practices and laws guardianship Bulgarian that thousands suggests many of report lives this the Overall, that is implication clear The standards. international basic if the Thishappen will only improved. be in could significantly Bulgaria of people Re mental disability advocacy center 3.
process and for as long as the adult is under guardianship.meaningful participationSpecifically: theinguardianship process fromthe beginning ofthe Improve procedures. Provide sufficient guarantees of the right of adults to adults of right the of guarantees sufficient Provide procedures.Improve (Indicator 24). decisionsaccountableguardianall wouldholdforthe which adult, and the bodythatwouldrequired be into taketoaccount information received from Establisha procedure for periodic review of guardians’ actions by an objective including access to judicial remedies (Indicator 25). effective complaintsEstablishan guardianship,under adults mechanism for are responsible (Indicator 23). Require guardians periodically to life visit their and speak affecting with (Indicatorthe decisions adults about for 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 at court hearings, including appeals. (Indicator 4). Ensureprovision for the adult of free legal representation paid for by the State at guardianship court hearings (Indicator 3). Also, clearly identifying when the capacity,adult’sand ensuring presencethat the adult is present is and heardnot at these proceedings.necessary proceedings (asrelated anto the procedure exception)for depriving the person Ensureof his thator her thelegal adult is properly notified anddeclaring has accessa person to incapable information (Indicator about2). all Define law sufficientlyin clear and specific for bases anfiling application for Establish regular reviews of guardianship. (Indicator 28). demonstrable a on link based between diagnosis is incapacity and functional of finding capacity a (Indicator that legislation specifies 8). that Ensure the adult’s capacity (Indicator 20). Ensure that legislation definesthe scope ofthe guardian’s (Indicator obligations2 in light of restrictiveleastthearrangementsseekliving Requiretoguardians adults for – – – – – – – – Make a will (Indicators Access courts. Associate. Vote. Marry. Family life. w p roperty. ork. 1 1 9). ). 1 2). 1 3, 1 5- 1 1 7). 0). human rights and guardianship in bulgaria ). 11 0 and and 0 1 Ensure Ensure that legislation mandates compulsory and meaningful reviews guardianship, of at which the adult is 27). fully (Indicator involved and represented. adequately legally those Identify areas where guardians to have authority act, as well as those authority. such no have they where provision that ensures that decisions are made on the basis of current medical medical current of basis the on made are decisions that ensures that provision 8). and 7 (Indicators reports. psychological and a for needed ofevidence quality type the and specifies legislation that Ensure 9). (Indicator capacity. legal of deprivation of finding judicial as with serving people the guardian preclude from for that selecting clearly criteria Establish institutions) care social of directors as (such interest of conflicts (Indicators guardians. Establish objective Establish criteria objective for conducting incapacity assessments and clear a Thismust include of legal incapacity. for a determination grounds judicial Specifically: Specifically: Prevent Prevent abuse. Reduce the potential for abuse of adults under guardianship.
protection of the human rights and interests of the adults under guardianship. MDAC MDAC guardianship. under adults the of interests and rights human the of protection civil and authorities Bulgarian the with cooperating and engaging to forward looks reform. implement and plan they as society of professionals working in the guardianship field, will produce significant improvement improvement significant produce will field, guardianship the in working professionals of would in the Therecommendations of quality system. the Bulgarian guardianship the strengthening by standards and law international with line into legislation bring MDAC believes that implementation of these recommendations, coupled with training training with coupled recommendations, these of implementation that believes MDAC 4. 10 mental disability advocacy center guardianshavebothdecision-making authority overadultobligationthe anand to order. Generally,court by or guardian’slaw defined specific either by authority is administrativeauthority) then appoints aguardian to act on that adult’s behalf. The ‘legally incapacitated’. adult is an that findings could suchbe of outcomeThe behalf. own their decisionson make completelyto capacity orlack courtand administrative processes, during which adults are found to either partially Guardianshipisusually 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 jurisdictionworld.thein widely Itis protectingmeansofaccepted a as individuals behalf. makepersonal decisions andthe person appointed torequisitemake decisions tothecapacity lackon deemedtothat adult’s is whoadult an betweenprocesscourt a relationship established by legal a as ‘guardianship’ defines MDAC children. for This report is aboutguardianship of adultsand does not deal with legalarrangements 1.1 Int 1. guardians and have an efficient accountability system. that adult. To be effectivetherefore, guardianship systems must protectoverseeorfromthe decisionsmaking actionsthatarecontrary totheof desires and/or interests of neglectadultofresultan can outfromguardian failingtocarryatheobligation to decisions as well as the right to exercise other fundamental human rights. Abuse and adults who are placed under guardianship lose their cases rightmany in torevealedthatcountries severalMDAC’s hasmake in out carriedresearcheven the most basic status. its under placed those of lives the profound on effect a Guardianship has diligence and conscientiousness. competence,their as suchguardian, eachpersonal qualities ofcertain dependson protect the adult’s welfare. The effectiveness of guardianship as an institution heavily
Guardianship provide for a finding of partial or limited legal capacity. legal limited or laws partial of Some finding a for provide ‘incompetent’. or ‘incapable’ instance, for as, such behalf, own one’s on act to inability legal the define to terminology different use jurisdictions Different 114. p. on Glossary the in defined as capacity’, ‘legal term the uses MDAC report, this Throughout 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. much after at arrived was report this throughout used terminology language English The The legal mechanism of guardianship exists in some form in almost every someguardianship mechanism in form The legal in exists of r o d u c t i on The court court an The (or human rights and guardianship in bulgaria 11 meet_ 3 2 which states: states: which 2 1 As a result, legislators legislators result, a As In a such small of number jurisdictions, http://www.worldenable.net/rights/adhoc 992,available at: 1 . Canadian Association for Community Living (CACL) report. Task Force on Alternativesto onForce AssociationTask Communityreport.(CACL)LivingCanadianfor Guardianship,August guardianship.htm See the Glossary at p. 114 for a definition of supported decision-making. Subject to the provisions of this article, States Parties shall take all appropriate and and appropriate all take shall Parties States article, this of provisions the to Subject impartial authority or judicial body. The safeguards shall be proportional to the to the proportional beshall safeguards The body. judicial or authority impartial interests. and rights person’s the affect measures such which to degree or own to disabilities with persons of right equal the ensure to measures effective capacity capacity provide for and appropriate effective safeguards to prevent abuse in human with rights accordance Such law. international safeguards shall ensure and will rights, the respect capacity legal of exercise the to relating measures that are influence, undue and interest of conflict of free are person, the of preferences and for apply tailored to circumstances, the proportional the shortest person’s and independent competent, a by review regular to subject are and possible time an equal basis with others in all aspects of life. life. of aspects all in others with basis equal an with access by persons to provide measures shall take Parties appropriate States capacity. legal their exercising in require may they support the to disabilities States Parties shall ensure that all measures that relate to the of exercise legal everywhere as persons before the law. law. the before persons as everywhere on capacity legal enjoy disabilities with persons that recognize shall Parties States 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. 3. 4. 2. 1 Equal recognition before the law the before recognition Equal rights law and as a pressing issue internationally. In the United Nations Convention Convention Nations United the In internationally. issue as pressing a and law rights a legal capacity, Convention), (Disability Disabilities with on the Rights of Persons Article in with dealt specifically is guardianship, to integral concept been exhausted. been human international in recognised formally been has belatedly, rather Guardianship, most notable of these is supported or assisted decision-making. assisted or supported is these of notable most to is that resort last a as model guardianship the see jurisdictions these in courts and have and protection of support measures be after used all only restrictive less other ensuring the ensuring right of self-determination. and reformed, been have laws UK, guardianship the and Canada in as jurisdictions the Possibly emerged. have assistance and protection providing of means alternative as a means of providing protection and assistance to people with mental disabilities disabilities mental with people to assistance and protection as providing a of means is itsto provide failure criticism Theprinciple and criticism. is increased guardianship under coming administering and establishing in protections process due adequate 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 examines this reality, by reviewing the implementation,impact oron guardianship.otherwise, As oflegislation this legislationand reality frequently projectdiverge,has twostages. theThe first examinationan secondis of specificstage legislative regimes that projectidentifytostrengthsweaknessestheexisting andlegislativeof regimes.The guardianshipareaanasin need of urgent reform, MDAC initiated Convention. Disability highlightits Toguardianship UN the including standards, rights human reform as countries continue to bring undergosubstantialtheirto likely legislationHowever,decades. arerelatively forunchangedthey in conformity with international remainedcountrieshaveMDACwhereguardianshiplawsworks,the of many In 1. influence boththe directionand speed ofthis paradigm shift in Bulgaria. Article andlaws which willmake the provisions of the Disability Convention, and those in human rights of those under guardianship, towards the adoption of national policies MDAC’s to credence call for add an immediate they paradigm Further guardianship. shift implicate away directly from provisions the These arbitrary removal of the garia),PetarSardelić AleksandraandKorec (Croatia), ZuzanaBenešová Davidand participatedand editorialthein process. The researchers were Slavka Kukova (Bul conducted all of the in-country research, wrote the first drafts ofthe country reports Research was carried out by lawyers from each of the target countries. The researchers 1. true as the guardianship project is not a statistical survey, but, rather,the resultanta legal analysis.reports may raise more questions thanthey answer. This is particularly withmany research projects that serve asthe first exploration of uncharted territory, law, standards and best practices, in order to highlight any areasnational inguardianship needlegislation of inreform.these countries compliance of withAs of degree international the examine humanto rights is research one stage of aim specific The Kyrgyzstan. A separate report has been prepared for each country researched. additionalresearchan in four countries: Croatia, CzechtheRepublic, Georgia and was initially on four: Bulgaria, Hungary, Russia and Serbia. In 2006, MDACfocus States.The numberof began a inguardianshipsystemslegislative ofthestructure examining by 2004 late inresearch guardianshipits ofone stage MDAC started and how it effects individuals facingguardianship proceedingsand lifethereafter. 2 3 persons with disabilities are not arbitrarily deprived of their property.bankloans, mortgages andother forms offinancial credit,and shall ensurethat inherit property, to control their own financialaffairs and to have equal access to Researching Guardianship Guardianship Researching Acknowledgements 1 2 in particular, a reality. It is MDAC’s wish and intention that this report will - human rights and guardianship in bulgaria 13 - study of the legislative texts, rather than they are how rather texts, of the legislative study , Director and Professor, School of Criminology, Simon Simon Criminology, of School Professor, and , Director , , Chairman, Bulgarian Helsinki Committee, Sofia, , Professor of Community Medicine, University , of of Professor University Tromsø, Community Medicine, de de jure , Director, Irish Council for Civil Liberties, Dublin, Ireland; and Ireland; Dublin, Liberties, Civil for Council Irish Director, , , Professor of Law, London School of Economics, London, UK. London, Economics, of School London Law, of Professor , Stage One: Legislative Review Method guardianship and the rights of the parties to such procedures. such to parties the of rights the and guardianship the rights of Documenting the the alleged to person lack throughout capacity process. guardianship Studying Studying the legal procedures for obtaining, modifying and terminating Dr. Jill Peay Jill Dr. Fraser University, Vancouver, Canada Vancouver, University, Fraser Dr. Georg Høyer Norway Dr. Krassimir Kanev Bulgaria Kelly Mark Mr. Dr. Robert M. Gordon Robert Dr. 4 5 of this report, is 5 a of this report, applied. The study examines the types of guardianship arrangements available under under available arrangements guardianship of types the examines study The applied. by: legislation national relevant other any as well as laws national 1.4.1 page 2, section in found are which of Bulgaria for results the research, the of one Stage 1 1. Georg Georg Høyer on commented later stages, and István Fenyvesi and Oliver Lewis report. final the produced background research and István Fenyvesi designed and laid out the reports. reports. the out laid and designed Fenyvesi István and research background in Research the was Bulgaria who wrote first by Kukova, draft. out carried Slavka 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 project. Guardianship this to made have they contributions collective and individual the for Board implementation of both stages of the project, its members generously contributing their their contributing generously members its project, the of stages both of implementation internationally five of consists Board Advisory Guardianship The expertise. and time law: rights human and guardianship health, mental of field the in experts recognised Beginning in February 2003, long before the guardianship project field research began, began, research field project guardianship the before long 2003, February in Beginning Board. Advisory Guardianship the form to individuals of a group gathered MDAC Thishasgroup in been involved anactive designin capacity and theconception, senior law student who also served as project assistant), Meder Dastanbekov (Kyrgyz Dastanbekov Meder assistant), project as served also who student law senior (Serbia). Hadži-Vidanović Vidan and (Russia), Smorgunova Anna stan), Kosar (Czech Republic), Nina Dadalauri (Georgia), Dániel a Kaderják (Hungary, Nina Dadalauri (Georgia), Kosar (Czech Republic), 14 mental disability advocacy center creatednumericala system ofmaintaining information andstored thekeyandraw page on C provideAnnex(See they data the aspectbythisofresearch adopted andhas guidancetoprotect theparticipants and toparticipate init. MDAC hascarefully considered the ethical issues that are raised interviewees to understand the purpose of the of research capacity and the to give and informed privacy the about consent are concerns disabilities.intellectual These or disabilities health) (mental psycho-social have whom interviews includes of some participants, thatof research conducting when raised are concerns Ethical of snap-shot a practices. guardianship capture to opportunity an gives collection data of files. manner agency This guardianship reviewing and proceedings agency guardianship ing possible, observ and applicable extent the to and, files court reviewing hearings, a on focuses report, 3 of this section found in are Two,of which Stage for Bulgaria results the 1.4.2 formulatedits indicators bearing in mind that, with the exception of Kyrgyzstan, MDAChas all Canada. UnitedandStates Europe,thejurisdictionslegislation inin Recommendation’s explanatory memorandum, ProtectionLegalthe Incapableof Adults.’ Further Concerning indicators ‘Principles were R(99)4derived from the Europe No. Recommendation Ministers’ of of CouncilCommittee the namely decision-making, supported and guardianship analysed. Throughout the project, MDAC indicatorsused 29 has against which legislation is 1. information which they provide. refuse participation at any time, and the conditions ofparticipants confidentialityabout thevoluntary nature surrounding ofparticipation the thein research, theright to differentin datalocations. informing standards guidance sets for out researchThe 5
are monitored, as well as the processes, for bringing complaints against them.Analysing the power and authority of guardians, their accountability and how they legal capacity. Assessingwhichadultrightsawaytakendeprived areanisafter restrictedor of 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 the full text of the memorandum at at memorandum the of text full the See indicators. 29 all of table-summary a for B See Annex recognized.’ 200 legally ed. (West 8th or Dictionary Law Black’s formally not though even effect having fact; in existing ‘Actual; These indicatorsare based in large part the on key document concerning de facto de examination of guardianship practices by observing court court observing by practices guardianship of examination https://wcd.coe.int/ViewDoc.jsp?id= 4 ). as well as from a review of guardianship 11 9 of this report).researcherEachthis of 9 4 0 7333 . - human rights and guardianship in bulgaria 15 - Ed. th such as Recommendation No. R(99)4. No. Recommendation as such 2004). Soft law implies a certain degree of political and moral commitment on the part of states and is a useful tool for interpreting existing legally binding norms. Recommendations norms. binding legally existing interpreting for tool useful a is and states of the Committee of Ministers Committee is empowered to ask Member States to inform it of of the action taken by them on the Council of Europe recommendations, thereby giving the Recommendations significant political force. are soft law; however, the strictly legally binding are nonetheless legally significant. Law Black’s Dictionary (8 ‘Soft law’ refers to rules, recommendations, guidelines or broad principles that while not
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 systems guardianship contrast in andcountries, hopes different that theindicator countries. other in research generate will system 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 and, as Member States of the Council of Europe, there is an expectation that they will will they that expectation an is there Europe, of Council the of States Member as and, law’, ‘soft its with comply countries under review have ratified the European Convention on Human review under Rights have ratified thecountries Convention European 16 mental disability advocacy center comprised of 3,790,840 men and 4,0 wake of theirdeparture.ofCommunistswakeBulgariauntil inruled 2 European Union in May 2005, Bulgaria is poised to join the EU in 2007.Atlantic Treaty Organization (NATO). Since ratificationLegal reforms of the occurred accession throughout treaty the to the Sincethen, Bulgarian democracy persevered,has though attimes on ground.shaky affected,first the post-communistand also coalition government came into power. In term Prime Minister, Todor Zhivkov, was removed as head of the Communist Party. Sovietswithdrewin theAlthough undercommunistfromrulewas Macedoniato the west, and Romania to the north along the the river borders Danube. Bulgaria It Europe. southeastern GreeceTurkeyeast,andtheto south,Black the Sea toSerbiaRepublic the in and of country a is Bulgaria, of Republic The 2 state-run social care homes. Committee (BHC) in June 2004, there were approximately 4,500 adults livingAccording in 52 to data collected by the non-governmental organisation Bulgarian Helsinki ‘mentallywas as ill’ toNCHI’s the According numberfordate,the same data the of people registered As of December 2003, there were an estimated 7,80 profound or severe. For some, the level of cognitive impairment unspecified. was mild, as 28,365of werecategorized disabilities in individuals number, that Of intellectual disabilities. the 46,000 deemedhavetointellectual overBulgaria just were there 2004 Ministry of end the the at under Care, Health (NCHI) of Information Health for Centre National the by 2 . .1 . 2
13 1 11 1 1 2 0
990, as a wave of democratisationofwave a spreadas across990,Europe,Easternwas Bulgaria Demographic and and Demographic Gu Introduction Interview with Krassimira Dikova, Officer of the Medical Statistical Data Collection Collection The Bulgarian Data Helsinki Committee (BHC) conducted a Statistical three-year monitoring study of Medical social the of Officer Dikova, Krassimira with Interview http://ec.europa.eu/comm/enlargement/bulgaria/eu_relations.htm (accessedJune13,2006). Social Care HomesforPeople withMentalDisabilitiesinBulgaria, in published and 2004, and 2001 between conducted was mental disabilities. with adults for homes care study,that of result a cited is data The which 2005. December 13 Sofia, Information, Health for Centre National the at Department government.bg/. aa ulse b te ainl ete o Hat Ifrain Se http://www.nchi. See Information. Health for Centre National the by published Data ardia ns 1 78,447. hi p l p 1 3 Social care homes are government institutions for adults aw S ocial ocial
1 a 944, when it was invaded by the SovietUnion.theinvadedby was itwhen 944, 1 n 947, a communist government was left in the947, communistingovernment lefta was L 1 d 1 andscape of Bulgaria of andscape 0,433 women. 990s, and in 2004 Bulgaria joined the North pol ic 1 y y 2,952 as moderate, and 4,695 moderate,2,952as and as 1 i ,273 people living in Bulgaria, n B n 11 According to data provided Archipelago of the Forgotten – Forgotten the of Archipelago UL GARIA Sofia, August2004. 1 989,whenlong-its 1 0 1 2
human rights and guardianship in bulgaria 17 . - - - the 1 20 , 26 9 These 1 5 6 1 November /Smilov_pa ). . 3 are for suffer 5 ministers. The The 5 ministers. 13 1 onst /sections/bulgaria/ , amend. SG 8 1 . C 1 99 ulg 1 B In total, according to the to according total, In ) ( 5 4 1 Open Society Institute 200 July ( 5 13 6, 5 Although no official statistics exist, , ch. I, art. 4 1 5 7 1 Feb 200 5 8/2 The Supreme Court of Administration and the 8 1 1 ystem Sofia, August 2004, p. 136. Sofia, August 2004, p. 21. S Judicial Independence in Bulgaria,’ http://www.iue.it/LAW/Events/WSWorkshopNov200 . ‘EUEnlargement andJudicial Independence Bulgaria,’ in are designated for people with mental illnesses and f 13 , amend., SG. egal http://www.eumap.org/topics/judicial/reports/judicial0 3 L 2 social care homes in Bulgaria, 26 are designated as homes for adults with intel Archipelago of the Forgotten – Social Care Homes for People with Mental and EUMAP, ‘ ‘Archipelago of the Forgotten – Social Care Homes for People with Mental 5 f . Available at: 3 lectual disability, Available at: judicial_bulgaria.pd Disabilities in Bulgaria,’ Disabilities in Bulgaria,’ per.pd ers of dementia. Constitution of the Republic of Bulgaria, prom. SG September 200 Ratified on 23 March 1976. BHC, AnnexA.See See,Daniel Smilov, Of the BHC, ‘ 200 Bulgaria’s
9 6 8 1 20 1 17 1 14 15 3 . Bulgaria is party to all major international human rights conventions. Bulgariahas conventions. rights human international major all party to Bulgariais ratified the International Covenanton Civil Politicaland Rights (ICCPR), respect to the Republic of Bulgaria, shall be considered part of the domestic legislation of of legislation domestic the of part considered be shall Bulgaria, of otherwise.’ Republic stipulating the to legislation respect domestic any supersede shall They country. the the constitutionally established procedure, promulgated and having come into force with by with ratified force been have which into lawThe supreme in instruments the come which country is has the direct effect. The having Constitution, international and ‘any that provides promulgated Constitution procedure, established constitutionally the determine the legality of governmental acts. The Constitutional Court interprets the the interprets Court Constitutional The acts. governmental of legality the determine laws. Bulgarian of constitutionality the upon rules and Constitution system is independent, although the degree of independence has been brought into into has brought been independence of the degree although is independent, system question by numerous reports. Court Supreme of of Cassation oversee application laws by the lower courts and Bulgaria is a parliamentary republic with an elected president and and president an elected with republic a parliamentary is is Bulgaria Parliament members. 240 of consisting body legislative unicameral a is Parliament judicial Bulgaria’s treaties. laws for enacting and ratifying international responsible 2 placed under ‘plenary’ guardianship and deprived of legal capacity entirely. of legal capacity and deprived guardianship ‘plenary’ under placed glossary. the in further described are terms for people with dementia were under legal guardianship. legal under were dementia with been people have for – adults institutionalized of 70% over – 3,300 approximately data, BHC’s were 85% approximately guardianship, under Of those guardianship. under placed the BHC estimates that, at the time of their visits, approximately 85% of residents of residents 85% approximately at that, the time visits, of estimates their the BHC homes in the residents the of 73% disabilities, intellectual with people for in homes homes the in residents the of 44% approximately and illness mental with people for with with mental and/or intellectual disabilities. 18 mental disability advocacy center In summary, Bulgarian law employs a two-stage process. The first stage is the is stage first The process. two-stage a employs law Bulgarian summary, In society. in Bulgarian disabilities intellectual or problems health mental with people towards time early the since unchanged Supreme by law. case Court remain forTheframeworks andincapacitation compensated guardianship legal extent some to is guardianship regarding provisions of Thelegal Code. byProcedure scarcity the Civil regulated are issues Procedural Chapter and law Theis guardianship set substantive outin the Law and for Individuals Family, 2 to non-discrimination. right ing and man FreedomsRights Fundamental (ECHR), a which free-stand guarantees in ofDiscrimination Respect Employment and Occupation ter, (ECHR), Rights Human on Convention (CEDAW), Women against Discrimination of Forms All of Elimination Conventionon the (ICESCR), Rights Cultural and Social Economic, on Covenant International that the adult’s legal capacity is limited rather than removed.adult’slimitedguardianshiptheratherthanPartialcapacity thatis legal and the person is left with no legal powers; and (b)(a) partial guardianship,plenary whichguardianship, means which means that the Law The for Individualsand adult’s Family provides categories two for incapacity:of legal legal capacity is entirely removed under guardianship. exercises the person’s guardian rights a and appointed,accepts legal responsibilities Once appointment. on behalf theof the person make authorities,governmental not appointdo the Courts guardian capacity.rather the legal guardianship authority,of deprived an office fully consistingor of local partially either been has who orremoved. The second the appointed is point is guardian which at a for person a a person’s legal capacity to exercise rights and accept legal responsibilities is limited orcapacityfully.eithercourt is done procedure through This a partially which by legal his/her deprivedof be may individual an which through processincapacity has yet has to sign Protocol . 4 26 2 2 2 22 2 5 4 3 1 25
n te nentoa Lbu Ognzto Convention Organization Labour International the and Guardianship Guardianship Ratified оn 22 July 1960. July 22 оn Ratified 2000). 1 on August force into (entered 2000 June 7 оn Revised 1992. September 7 on Ratified 1991. July 3 on Ratified 1982. March 10 on Ratified 1976. January 3 on Ratified 22 the Convention on the Rights of the Child (CRC), Child the of Rights Convention onthe the 1 0 (Full Legal Guardianship and Trusteeship) of the Family Code. Code. Family Trusteeship)the of and Guardianship Legal (Full 0 L 1 aw in Bulgaria in aw 2 to Conventionthe European for the Protection of Hu 1 980s, reflecting the dominant attitudes at that that at attitudes dominant the reflecting 980s, 24 the Revised European Social Char Social European Revised the
(ILO (ILO Concerning 111 Concerning 23 111 the European European the ). 26 Bulgaria Bulgaria 2 - - - 1
human rights and guardianship in bulgaria 19
29 It should should It 27
(amend. SG 33 5 ). 53 rocess 9 1 P Adults under partial under Adults 1 3 . 5 ) and (2). This report uses 1 98 1 09, para ( 1 /28 May 41 28 , which provides that hearing of cases will be The law provides that people with less severe severe less with people that provides law The 1 (amend., SG 89, 6 November (2). . 30 5 5 5 , adopted SG , para. 5 117 0 1 If the circumstances of the case refer to the private life of of life private the to refer case the of circumstances the If 0, art. 34 tep Guardianship/Incapacity 1 S ). Equating adults under guardianship to children is further 53 9 32 1 wo- 4. T 1 8, while adults under plenary guardianship 8, are with guardianship children plenary while under equated adults 1 4 4 to conducted orally at an open session, unless the law provides for a closed session. ‘guardianship’ and ‘trusteeship’ interchangeably. Law for Individuals and Family, art. Law for Individuals and Family, art. Family Code, Chapter Civil Procedure Code, art. UnderBulgarian a person law, with limited capacity is placed under the care of a ‘trustee’ as opposed to a ‘guardian’: see Family Code, art. Itshould benoted that precise translation oftheterminology used inthelaw would bedue LawforIndividualsArt.‘diseaseor thesoul.’ ‘weakoftomind’ andFamily, 89, 6 November Law for Individuals and Family, art. Law for Individuals and Family, art. 3-5, adopted SG 182,August 9 1949. 1 Bulgaria’s
2 0 7 3 33 34 29 3 31 2 28 5 . upon the motion of a party, rule that all or part of the court hearing be conducted in in conducted be hearing court the of part or all that rule party, a of motion the upon Procedure Code is applicable. The Code provides for oral court hearings in public unless unless public in hearings court oral for provides Code The applicable. is Code Procedure or motion otherwise. own its on provides law may, the court the then public, the to harmful be may or parties the procedure conducted by the local guardianship authority. authority. guardianship local the by conducted procedure No special legal part rules the govern of incapacitation the but process, the Civil by a court and regulated by the Civil Procedure Code, is the incapacitation procedure procedure incapacitation the is Code, Procedure Civil the own by her regulated or and his of court a care take by to capacity the lack to presumed is person a when initiated administrative an is and guardian a of appointment involves step second The affairs. As mentioned above, there are two separate steps in Bulgaria for depriving an adult of of adult an depriving for Bulgaria in steps separate two are there above, mentioned As conducted is which step, first The a guardian. appointing and capacity legal his/her 2 provisions as applied to children without parental supervision. Thus, the Family Code Code Family the Thus, supervision. parental without children to applied as provisions that as acting a guardian to an or recognition adult obligations no special contains child. a for guardian a as acting than requirements different have might under under the age of in emphasised the Family Code, which regulates adult guardianship in the same be placed under plenary guardianship. plenary under placed be guardianship. partial under placed be may disabilities mental as children responsibilities and rights legal similar have to deemed are guardianship aged Diagnosis is equated with legal incapacity in the Law for Individuals and Family by by Family and Individuals for Law the in disability incapacity legal mental with or equated is disability Diagnosis intellectual their to due who, adults that stipulation its shall and court by the bedisabled to found be shall affairs their of care take cannot be noted that under Bulgarian law, a person with limited capacity is placed under the the under placed is capacity limited with person a law, Bulgarian under that noted be ‘guardian.’ a to opposed as ‘trustee,’ a of care allows participation in legal actions only with the consent of the guardian. the of consent the with only actions legal in participation allows 20 mental disability advocacy center or appoints an official to be the guardianship appointsorthe official be authority anto municipality. the for each municipality either personally acts as the guardianship authority him or herself,legally obliged to inform the municipality in which the personand citizensresides. who are of the opinion that a person may be in need of guardianshipneglect are of people with mental disabilities.There is no public body Bulgariain mandated However, investigateto allegations abuseof or public officials, public organisations care of the person under guardianship. tothe property ofaspects guardianship,opposed as to the personal protection and the benefit ofhis/her heirs sincethere are more provisions,with more detail,the relating law seems to focus mainly on protection of the assets of the personaim. secondary the adultomissionsisorconcerned an of for the legal protection of the adult, while protection of the public interest fromofdepriving adultaim capacity an ofis primary thelegal that the ruled Cassation has acts an adult’sactions.the ofinterestsand causes care take to that inability disability intellectual the or disability mental the are procedure rightsherorexercise his tocapacity legal the adulthas the whether of determination a is incapacitation procedure the of outcome The 2.5.1 during the second stage of the guardianship process. private. tobe notified ofthe request for deprivation of legalcapacity, rights are examined in more detail below. Among the procedural rights are theThe rights adult is giventhe same procedural rightsas other litigants in civil matters. These adult is presumed to possess capacity. Bulgarian an lawapplication provides to fordeclare no a specialperson protections.incapable. capacityWhen proceedingcourt isproceedings initiated whenare someone,initiated, who theis properly qualified by law,files 4 3 3 37 3 35 0 9 8 6
Incapacitation Procedure Incapacitation Civil Procedure Code, art. Code, Procedure Civil art. Code, Family art. Code, Family N2 Decision Cassation, of Court Supreme N Decision Cassation, of Court Supreme art. Code, Procedure Civil incapable, the summon shall be served on its legal representative or custodian or on its its on or custodian or case.’) the in attorney representative legal its on served be shall summon the legally incapable, is person the When case. the in attorney its or person summoned the of signature their attorneys,theexpertsandwitnesses,aswellthosewhom chairmanallows.’ parties, the be shall room court the in admitted case such In doors. closed behind done be rule that the hearing of the case or the performance of only some of the actions under it shall parties, the of any of request the at or officio ex shall, court the parties, the of life intimate the to refer circumstances these if or interest public the to harmful be to prove may hearing 35 The law is silent on procedures to be followed bythe guardianship authority 11 1 09, para para 09, 0. 4 , para. 105, 6, para. para. 6, 3 . 1 ‘The summon shall be served against the personal personal the against served be shall summon ‘The :‘If, due to the circumstances of the case, a public a case, the of circumstances the to due 3:‘If, 45 1 88/ 6/ 1 3 6.02. 0.0 37 Analysis of the policy inherentpolicytheof in Analysis 7 1 . 9 1 7 9 6 (Case No. 2 No. (Case 6 7 9. . The legal grounds for the grounds for legal The 36 The Supreme Court of SupremeThe Court 40 to be present at court 7 2 7 / 75 38 ). The mayor of 39 The human rights and guardianship in bulgaria 21 - - - ). At 7 99 1 to present present to 43 of 4 2 1 , amd. – SG No. 1 96 1 46 shall not apply. 3 0 of the Code reads: 11 to be represented by an by attorney, be represented to 0. ‘Thepersonplacedbe to under guardianship should ‘The decisions ofthe regional courts oflaw shall be 3 ‘The following may be representatives of the parties 1 42 ‘If, due to the circumstances of the case, its public hear public its case, the of circumstances the to due ‘If, of art. 6 11 1 3 4 ) ) In connection with the objections of the defendant, the , amd. No 99 of : ‘Legally capable persons may participate in all court 7 1 1 , para. 2. , para., 99 to examine and challenge evidence presented by the the by presented evidence challenge and examine to 96 1 , para. , 1 44 09, art. 75 09The provision reads: 75 5 96,para. 999) In view of the explanations of the parties the court can 1 1 0 1 1 of / 1 4 6, para. 4 2 1 1 /02)As an exception, at the next hearing, the parties can suggest new 5 The role of the prosecutor in these cases is to provide his or her her or his provide to is cases these in prosecutor the of role The 0 . In this case para 47 1 1 , para and to appeal the court decision. court the appeal to and 5 45 to have a private hearing, a private have to 1 ) (New – Izv. No. 90 of ) At this hearing each party shall be obliged to make and ground all of its demands ) (New, SG 4 1 1 claimant may, within a term established by the court, produce and point out new evidence. new out point and produce court, the by established term a within may, claimant 3 circumstancesandpoint outand indicate newevidence only iffor lack ofthem correcta ruling cannot be provided and if the additional stamp duty has art.been 6 paid according to its first session the defendant shall beon obliged the to producedisputable allfactual of circumstanceshis writtenand evidencecircumstances, to which he will ascertainpoint with them. out the other evidence and the 2) (New – SG No. Furtheronthe court shall invite the parties tocome toan agreement. Ifthey fail toreach anagreement, at the invitation of the court the defendant shall produce his evidence and the claimant – his additional evidence, if any. The2)court shall put questions toeach ofthe parties concerning the factual contentions of the opposite party. The answers to these questions shall chairman,be in orderdictated to be enteredin on the protocol.short by the and objections and give a statement on the circumstances adduced by the other party. ) (Amend., SG, No. 6 subjectappellateto appealbeforedecisions theanddistrictthe district the ofcourtslaw, of courts of law shall as a first instance – before the respective court of appeal.’ decree by a definition for separation of the disputable from circumstancesthe indisputable need no evidence.Art. that certain byproxy: a) the attorneys at law; b) the parents, children or the spouse; c) the legal advis ers or other employees with legal education at the institutions , enterprises, co-operations and other public organisations and corporate bodies....’ procedures personally’. intimate the to refer circumstances these if or interest public the to harmful be to prove may ing the that rule parties, the of any of request the behind at or done officio ex be shall, court shall the it parties, the of under life actions the of some only of performance the or case the of hearing the attorneys, their parties, the be shall room court the in admitted case such In doors. closed that.’ allows chairman the whom for persons the as well as witnesses, and experts be interrogated in person and, if needed, shall be brought by compulsion. In case the per son is in a hospital establishment and his health condition does not permit in to personbe broughtat the court hearing, the court shall be obliged to get an immediateof impressionhis condition.’, art. Civil Procedure Code, art. CivilProcedure Code, art. Civil Procedure Code, art. 2 Civil Procedure Code, art.20, para. Civil Procedure Code, art. CivilProcedure Code,art.2 Civil Procedure Code, art. Code, Procedure Civil
6 2 4 47 45 43 44 4 41 The prosecutor must take part in court hearings, even in cases where the prosecutor prosecutor the where in cases even hearings, court inpart take must prosecutor The applicant. the not is evidence and to call witnesses, call to and evidence party, other hearings, 22 mental disability advocacy center Whenthe guardianship authority receives the decision from the court regarding the municipality and assisting guardians in carrying out their duties. responsiblefor overseeing and monitoring guardianshipall arrangements within the appointedguardianis bytheguardianship authority. guardianship The authority is oneadult’stheof parentsappointed.be may spouse with legal capacity he or she may be appointed guardianwithoutguardian or,sendingguardianshiptheto casethe authority. if no appointsadultthe a a Ifhas spouse itself court exists, the which in circumstances limited out sets Code Family specified the timeframenor is within whichthe communication should occur. The not authority is guardianship to court communication from this for mechanism decisionappointed.guardianshipthebemaytoauthorityguardian a that so communicatescourtguardianship,plenaryunderplacedthethe person is a After 2.5.2 tional evidence. ceedingsmayforlastmore one thanhearing if, for example, thecourtorders addi will hear evidence, including witnesses and experts, and decide on the case. The pro If the court is satisfiedthat the adult has been informed ofthe proceedings,the court to be deprived of legal capacity. opinion to the court as to whether or not there is sufficient evidence for an individual authoritymust convene such aboard, which consists of the guardian, adeputy and, mayappointalso guardianshipa board. For adults under plenary guardianship, the At the opening of the proceedings to appoint a guardian, the guardianship authority deprived of their capacity. hasno mechanism prescribed by law to receive such information for adults partially guardianship well.The as appointauthority,thesecases toin guardian a therefore, totheguardianship authority, yettheguardianship authority nonethelessis obliged communicatenotneedcourtlaw,decisions thethe involving guardianship partial provideguidancetohow as eligible potential guardiansshould evaluated.be Under Inother words, the law provides some disqualifying criteria but does not necessarily stipulatesnegativerequirementspotentialseveraltrustees/guardians.the regarding guardian who would best protect the adult’s adult’sinterests.bethe amongpersonfromselectto relativescloseobligedauthority to a is To facilitate this process, the law incapacity of a person, it opens a proceeding to appoint a guardian. Theguardianship 51 5 4 4 0 9 8
Procedure for Appointment of a Guardian a of Appointment for Procedure Family Code, art. Code, Family chapter Code, Family decision the ‘After 1997) of 124 No. SG - (Amd. para.3. 276, art. Code, Procedure Civil art.2 Code, Procedure Civil by which the person is placed under full guardianship enters into force, the court shall shall court guardianship.’ the establish to force, order in body into guardianship the to enters that communicate guardianship full under placed is person the which by 1 2 4 . 1 0, art. art. 0, 7 , para. 2. (Amd. SG No. No. SG (Amd. 2. para. , 48 1 28, para para 28, 3 . 50 However, trustee/mostthecases,in 1 2 4 of of 1 99 7 ) 5 1 49 The - - human rights and guardianship in bulgaria 23
57 58 For partially adults 54 55 Further, ‘guardians and Further, 53 . 1 , para. 113 and art. 1 For this reason, it seems that the guardianship board board guardianship the that seems it this reason, For 52 56 2. As noted above, MDAC uses the work ‘guardian’ when the . ‘Pedagogical education’ is a literal translation of the law into . , para. . . Thelawrefers. butto‘thesince child’ this lawapplies both toadults 1 6. 11 2 111 1 111 11 113 114 under guardianship and children under guardianship, it is conceivable that for the‘foster family’ careprovision could apply to adults as well as to children. English.The plain meaning of which suggests special training in education. Bulgarian law states ‘trustee’ to be appointed for adults partially capacity. deprived of their legal Family Code, art. Family Code, art. FamilyCode, art. Family Code, art. Family Code, art. Family Code, art. Family Code, art.
8 6 2 57 5 53 54 55 5 5 municipality to accommodate the ‘child’ in a foster family or in a specialized institution. specialized a in or family for foster office the the support a socialmay request authority in The guardianship functions. ‘child’ the accommodate to municipality it appoints, must take an inventory of the adult’s property and take other protective protective and take other property of the adult’s take an must inventory it appoints, guardian fulfil of the adult. interests and other temporarily property the to personal regarding necessary person measures another assign can guardian the necessary, Where consider the opinion of the adult’s relatives, although the adult need not be consulted. consulted. be not need adult the although relatives, adult’s the of opinion the consider someone through or itself, authority guardianship the appointed, is guardian a Before interests of the adult require, when the obligations of a guardian or the needs of the adult adult the of needs the or guardian a of obligations the when require, adult the of interests to required is it tasks. required tothe changes, fulfil unable these becomes guardian themake orwhen to fulfilled, are not power the has authority guardianship the While about approval of the report. the of approval about the when board guardianship the change to power the has authority guardianship The the guardianship authority about failures of the guardian in protecting the rights and and rights the protecting in guardian the of failures about authority guardianship the and guardian the by reports receive They guardianship. authority under person guardianship the of the by interests made determinations any in participate to supposed are The role of an advisor in a guardianship board is to assist the guardian in andThe fulfillingdeputy-guardian the advisorsare toobliged theirobligations. inform deprived of legal capacity, the guardianship authority appoints only a guardian and a and or guardian for are a reasons, other to unable fulfilonly guardian functions.’ appoints authority guardianship the capacity, legal of deprived acquaintances. close and relatives the from guardian deputy members of the guardianship board cannot be disabled, deprived of parental rights, rights, parental of deprived disabled, be cannot board guardianship the of members alcoholism, who due to sickness, persons nor crimes, deliberate of severe convicted guardianship, under ofadults ofinterests conflict conduct, mercenary life, immoral duties. Where possible the guardianship board for persons under plenary guardianship guardianship plenary under to the guardian assistance in carrying is his/her persons board out to provide guardianship for board guardianship the possible Where duties. must also persons with include education.’ ‘pedagogical relatives and friends of the adult, who the guardianship authority believes will ‘best believes authority guardianship the who adult, the of friends and relatives interests. adult’s the for’ care of the The function circumstances. adult’s each to be to individualized is conceived in the case of plenary guardianship, two advisors, generally chosen from among the the among from chosen generally advisors, two guardianship, plenary of case the in 24 mental disability advocacy center MDACdevelopedhas seriesa of29indicators tousedbeassessingin guardianship 2 guardians. it allows public officials (such as directors of socialcareboard. institutions)The law to doesbe appointed not as permitagencies by aor deputy publicand, only corporationsin plenary guardianship tocases, by bethe membersguardians, ofthough According the guardian to the Family Code, the guardian must always be one person who is assisted cannot be appealed. first instance as listed in the Civil Procedure Code. would be the same list of ‘interested‘interested persons’ persons’who are is eligiblenot defined to withinfileby ‘thethis the interested section applicationpersons’ of theorbytheprosecutor inlegislation the tothedistrict court. but The meaning of presumablydecisions it (and refusal to take decisions) of the guardianship theauthority appropriatenesscan be appealed of the guardian’s planthe in lightproposed of theguardian specific plans needsto provideof the adult. care timefor The of appointment,the adult andwhich thereforemeans that there nois no inquiryevaluation into isthe mannerof not in which obliged by law to inform the guardianshipactivitiesafter authorityreceiving advice aboutfrom the his/herguardianship careboard. planThe guardianship at the authority may stop the activities of the guardian and propose other analysisof specific provisions of Bulgarian lawthat supportthe conclusions. Finally, apparentthe compliance statedthelawtotheofindicator below,is followed an by concisestatementindicator.a theis conclusionof box The Withineach regarding well as mechanisms for review and termination of guardianship once imposed. accountabilityoftheguardian. Thethird area explores less restrictivealternatives as correspondingthe responsibilitiesas welldeprivation capacityafteras legal andof placementto underguardianship. The second area addresses the rights the adultof dividedintomajorthree first addressesarea The areas.rights the adultthe priorof are themselves, systems guardianship like indicators, remaining The disabilities. framework, perhaps indicating general societal attitudes towards personsare considered.with mental The first indicator highlights principles that run throughout thein legal international law or standards, national laws and practices from differentIt should countries be noted here that where an issue Europeor assertionCouncil ofhas Ministersnot Recommendationbeen clearly No.established R(99)4 on standards,adultssuch theasand European incapacity.Convention on Human Rights and the Council of and law international rights from derived legislation. indicators human are These . 6 62 6 60 5 1 9
Human-Rights Based Assessment of Bulgaria’s Bulgaria’s of Assessment Based Human-Rights Family Code, art. art. Code, Family art. Code, Family 2 Ch Code, Procedure Civil art Code, Family 62 The law does not providethat aguardian undergoany training. 6 1 115 1 1 2 28, para. 28, 5 . . 7 1 , art 2 art , . 75 ( 1 ). 60 The decision of the district court 59 The proposed guardian L egislation human rights and guardianship in bulgaria 25 - do not sufficiently do sufficiently not 1 The language ‘all persons are are persons ‘all language The 64 ‘all persons are born free and equal equal and free born are persons ‘all
of Recommendation No. R(99)4 provides provides No. R(99)4 of Recommendation 1 Referring specifically to people with mental disabili mental with people to specifically Referring 65 ). ). 1 3 ). ( ( Principle Principle 1 57 51
The Constitution further states that ‘all citizens shall be equal equal be shall citizens ‘all that states further Constitution The 67 63 respect for the human rights, dignity and fundamentalfreedom of people with mental disabilities. Legislative purpose or preamble to the law encompasses , ch. I, art. 6( , ch. II, art. , ch. II, art. . . . 1 Arguably, guardianship is a measure of ‘special protection’. protection’. ‘special of measure a is guardianship Arguably, The Constitution and some laws provide for equal rights of people with with people of rights equal for provide laws some and Constitution The 66 According to the Bulgarian Constitution, Bulgarian the to According Bulg. Const Bulg. Const., ch. I, art. 6(2). Bulg. Const Bulg. Const Family Code, art. 2. Principles Running Throughout Legal Framework (Indicator 1)
4 5 7 3 6 6 66 6 6 Indicator permeate throughout the law: the throughout permeate that respect for the human rights and dignity of people with mental disabilities should should disabilities mental with Human Rights Standards: people of dignity and rights human the for respect that protection of protection the rights and of interests those statement under no guardianship or contains trusteeship, guardianship and capacity legal addressing legislation specific purpose. its suggest to These constitutional provisions apply generally, but other than the second paragraph of paragraph second the than other but generally, apply provisions constitutional provide to is These Code Family the of objective an that concludes which Code, Family the ties, the Constitution provides that such people shall enjoy ‘special protection of the state state the of protection ‘special others.’ of enjoy shall interests people legitimate the such that provides Constitution the ties, society.’ and no explicit guarantee of equal treatment for people with disabilities of any kind. Further, Further, kind. any of disabilities with people for person’s a treatment and equal of irrevocable,’ guarantee be shall explicit rights no civil ‘fundamental that or states rights the of Constitution detriment the the to exercised be they shall nor abused, be not shall ‘rights of race, nationality, ethnic self-identity, sex, origin, religion, education, opinion, political political opinion, education, religion, origin, sex, self-identity, ethnic nationality, race, of status.’ property or is status, social there or personal However, affiliation, disabilities. mental with people includes clearly equal’ and free born before the law’ and that ‘there shall be no privileges or restriction of rights on the grounds grounds the on rights of Analysis: restriction or privileges no rights.’ and be dignity in shall ‘there that and law’ the before permeate national guardianship legislation. guardianship national permeate Conclusion: 2.6.1 Human Rights. In a few instances, where no clear standard was espoused within these these within espoused was primarily from No. standard R(99)4 Recommendation and clear the no on European Convention where instances, few a In Rights. Human provided. are provisions legal acceptable of examples documents, two in the section termed ‘Human Rights Standards’ MDAC provides in a the provides ‘Human Rights termed basis MDAC section derived Standards’ mental disabilities, but the principles enumerated in Indicator in Indicator enumerated the but principles disabilities, mental 26 mental disability advocacy center This group of indicators addresses the procedural rights of adults in guardianship in adults indicators procedural of rights group the addresses of This 2.6.2. implementation of the law that follows. establishespreamblethisoverriding theA assuch shouldappliedvalues that be to peoplewithmental disorders obligationanis oftheState, Actthisproclaims […]’ fundamentala human value andacknowledging thatthe protection ofthe rights of embodying this principle. This example states, ‘[a]cknowledgingthethat statute.’ mental health is legislative provisions whenever there is any ambiguity in the substantive(WHO) provisions also ofrecommends this approach, in orderconsider thesetoprinciples helpwhen decision.drafting a ‘courtsThe World andHealth Organizationothers to importanceinterpret and recognition of human the rights on proclamation principles a and Such human statutes. relevantdignity will theguide the injudiciarystatement to This principlecan be implemented in legislation by including a preamble or a purpose account of their mental disabilities, are not fully capable of acting for safeguardsthemselves.’mayprove calledfororderin protectto intereststhe ofpersons who, on process and due fair proceedings. for Under standards European necessary human rights law, minimal ‘special the represent procedural indicators theseprotections, proceedings.nationallegislationprovideWhilewelladditional for mayand rights 71 7 69 68 0
I rlto t te rtcin f naal aut te udmna principle, fundamental the adults incapable protection of the to relation ‘In relevant international legal instruments.’ freedoms, taking into account any qualifications onthose rights contained inthe incapable adults shall be based on respect for their humanahumanbeing. The laws, rightsprocedures and andpractices relatingfundamental the to protection of person as eachof dignity otherprinciples, thetherespect forunderlying isall European Court of European Human Rights in the case of M28 Act, Protection Health Mental Rights Human Health, Mental on Book Resource WHO Organization, Health World R(99) No. Recommendation No. 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, No. care to dare Exclusion, Stop 200 Switzerland, Legislation: Geneva, Organization, and (WorldHealth Rights Human Health, Mental on Book Geneva, Organization, Health (World care to 200 dare Switzerland, Exclusion, Stop Legislation: and
Procedural Rights During Guardianship Proceedings (Indicators 2-7) (Indicators Proceedings Guardianship During Rights Procedural 69 The WHOThe citesthe Polish Mental Health Protection Act preambleas 5 ), p. p. ), 1 9. 4 , Principle Principle , 4
1 99 1 . 4 , Poland, as cited in WHO, WHO Resource Resource WHO WHO, in cited as Poland, , 68
Winterwerp Winterwerp v. the Netherlands 5 ), p. p. ), 1 9. , , Application 7 1
70
human rights and guardianship in bulgaria 27
76 - - 0). 7 29/ 3 upon which applicants applicants which upon 980. 980. 1 1 0 (case number 7 Article 275 of the Civil Procedure Procedure Civil the of 275 Article 9 72 1 . 3 .0 The list of who is determined tobe a isofdetermined who list The the factual basis the factual February February 14 75 / may initiate an application for guardian- for application an initiate may 7 13 13 9, 9, 7 7 who / / 5 5 The legislation does not define what is meant byiswhat meant define notdoes ‘legal a legislation The 73 The legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it. Legislation clearly defines defines clearly Legislation 47. (1) There are, between lineal relatives, as many degrees as the number of genera 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 As examples of persons who have legal interest in filing an application, the case case the application, an filing in interest legal have who persons of examples As Family Art. Code, 46. (1) Lineal affinity is the relation between two persons of which one Civil Procedure Code, art. 80, para. 1 (amend. - SG No 90 of 1961) (para. 1, amend. - SG No SG - amend. 1, (para. 1961) of 90 No SG - (amend. 1 para. 80, art. Code, Procedure Civil 28 of 1983). between two persons having a common strips without origination of the one from the other; the from one the of origination without strips common a having persons two between Art. gen of number the as degrees many as relatives, collateral two between are, There (2) tions. erations of one of them up to the common strips and from the latter to the other relative. such proceedings regardless of whether the Prosecutor has filed the application. of them originates directly or (2) indirectly Collateral from affinitythe isother. the relation Supreme Court of Cassation, Decision N66 The legislation actually provides that the participation of the Prosecutor is obligatory in Supreme Court of Cassation, Decree Supreme Court of Cassation, Decree Thus it seems that those who are potential heirs of the person to be placed under under placed be to person the of heirs potential are who those that seems it Thus 74 77
77 73 74 75 76 72 Indicator 2 homes may ask the prosecutor to file applications to place their patients and residents residents and patients their place to applications so file do to to prosecutor obliged the ask legally may are homes homes care social of directors Further, guardianship. under Any other person who wishes to file an application but who is not among the statutory statutory the among not is who but application an file to wishes who person other Any discretion some has prosecutor the but so, do to prosecutor care regional the ask social may and list hospitals psychiatric of directors example, For proceed. to whether on concerned. The legislation makes no specific mention of filing an application for the application of filing an mention nospecific makes exploitation. or legislation The abuse from concerned. individual vulnerable the protecting of purpose guardianship in terms of the interest of the applicant rather than the needs of the person for person the application anof to file right the needs define to seems the than legislation rather Bulgaria’s applicant the incapacitated. of interest the of terms in guardianship Essentially, status as ‘close family’ is determined according to Bulgarian inheritance inheritance to Bulgarian according is family’ as determined status ‘close Essentially, laws. person the to adjudicate to filean right the legal application also have guardianship law points to the creditors of the adult and people who have signed contracts with the the with contracts signed have who people and adult the of creditors Code. the to Family points the law of 46 Article in found is sought. is guardianship whom for legislation individual this of purposes for relative’ ‘close declaration of incapacity. declaration be a financial would interest’ ‘legal an that acceptable suggests case law but interest,’ stake. may be filed in the first instance in the district court. district the in instance first the in filed be may Code the specifies range ofin the who people spouse, thehas a who interest’ are ‘legal adult’s applicants: and anyone eligible prosecutor the relatives, close adult’s the may file. file. may Analysis: Conclusion: Conclusion: for provide sufficiently it does not but ship, 28 mental disability advocacy center for the protection of incapable adults’. The Recommendationcalls for‘fair and efficient procedures for thetaking ofmeasures respect to the first factor, Recommendation No. R(99)4 specifies that:natureofevidence necessary todemonstrate theneed for suchapplication. an With applicationan file may the appointmentfor guardian. should So the a specify of it StandardsRightsHuman ministerial order to grant the application. judicial independence, it does not operate in a vacuum and mayadult’s thebeofretainsbasis court influencedhome.thethe on care residencesocial While a in bythe adult, the solely but mental of status or needs the applicationThe on based not is nonethelessprovides basisa for filing an application that MDAC finds problematic. This order, while no substitute for a judicial decision regardingthe person’scapacity, leaves no room for evaluation of an individual’s ability to manage their own affairs. calls for blanket application of guardianship to all residents under state care andby thus an order issued by the Deputy Minister of Labour and Social Welfare. sufficient evidence in light of Principle 6( violation foundArticle court old.a The oneyear of more than hearing was the of time the individual’satpsychiatric thatreportex-husbandsubstantiated a and by theapplication an by on based individual’scapacity.procedure was This legalan deprivation of the to leading procedure the examined Rights Human of Court of maliciouscaseaccusationsincapacity. ofthe In havesome merit onthe face of it isnecessary– order in toprotect theadult against The second factor, or specificity requirement – that a guardianship application must of a law that clearly specifies whocan submit applications. 1 8 80 7 7 ) because,)among other procedural defects,Slovakianthe securefailedCourtto 1 9 8
‘The list those of entitled instituteto proceedings forthe taking of measures for ficial or body, or bythe court or other competent authority inon particular,its own motion.’be necessary to provide for proceedings to suresbe ofinitiated protection by acan bepublic considered of in all cases where they are necessary.the protection It may, of incapable adults should be sufficiently wide to ensure that mea Recommendation No. R(99) No. Recommendation Principle 9. Indicator See Policy, Social and Labour of Ministry the by issued 1999 October 20 SG-91-00-77, Letter at the respective municipality to appoint a guardian.’ guardian.’ a appoint to municipality respective the at body guardianship the to apply to issued is decision court the after c) guardianship; under placement for court the to application an send to b) home; the in person the of receiving pension the for documents necessary Institute Insurance National the of branch local the to a) to is present obliged of the institution the director guardian, nor appointed has no parents home care social a in placed person a ‘when that states letter the part relevant In 9. section 11 ( 1 ). : Legislation: shouldindividuals scope the define of who 4 , Principle Principle , 8 1 Fairness in this context includes the provision 1 2of Recommendation (99)4 which requires 5 ( 1 ). H.F. v. Slovakiav.H.F. , the Europeanthe , 78 This order 80 79 - -
human rights and guardianship in bulgaria 29 http://www. . Please note that When legislation legislation When 5 82 . Available . at: 5 can be avoided. avoided. be can This can be accomplished, for example, example, for accomplished, be can This The adult should be questioned in person person in questioned be should adult The 84 83 Such notice must be given by a designated designated a by given be must notice Such /00, judgment 8 November 200 85 7 . 9 . 3 5 H.F. v. Slovakia v. H.F. 547 , para , para 75 41 of attendance at the court hearing does not ensure that the the that ensure not does hearing court the at attendance of a guardian. An adult has a right to actual notice, and to be presentand heard at all proceedings related to the applicationdeprivation for of his or her legal capacity and appointment of , Application, No. in lieu in Legislation provides for a fairly elaborate scheme to provide notice to notice to provide scheme for a elaborate fairly provides Legislation Under Bulgarian legislation, the adult has the right to be notified no less no notified be to right the has adult the Bulgarian legislation, Under The summons should contain the following: the court issuing it, the name and address of the of address and name the it, issuing court the following: the contain should summons The summoned person, under which case and in what capacity he/she is summoned, the place and time of the hearing and notice of any legal consequences from the non-appearance. H.F. v. Slovakia v. H.F. the judgment is available only in French. For European anCourt of HumanEnglish Rights Registrar,Summary, 8 Novembersee 200 Press Release, echr.coe.int/ECHR/EN/Header/Press/Press+service/Introduction/. Civil Procedure Code, art. Civil Procedure Code, art. 2
4 3 8 85 82 8 Indicator 3 these are set out in detail in legislation. in detail in out set are these adult should be summoned no later than seven days prior to the court hearing. hearing. court the to prior days thanseven later no summoned be should adult hearings, and court of informed be may adult an which by means several are There visit by the judge judge the by visit that ensure does it the adult nor to evidence has adult to respond the opportunity The witnesses. calling including evidence present to opportunity adequate have will impression of the adult’s health condition. health adult’s the of impression by going to the to hospital see and speak with the adult. While this requirement does the support opportunity for the person to be heard by the judge, a personal a hospital and the treating doctor determines that he or she has a health condition has condition a health she or that he determines doctor treating the and a hospital direct a obtain to obliged is judge the court, attending from adult the prevents that Analysis: hearing. court the before days seven than in is adult the If will. her or his against court the to brought be may be, need if and, is laudable, legislation is allows legislation laudable, for of exclusion the person from concerned further process. the in participation need to actually inform the individual of his/her right to appear and participate in and to participate appear right of his/her the individual to need actually inform hearing judge the that requirement the while Additionally, process. guardianship the the of to case the subject the person obtain impression an guardianship in-person Conclusion: Conclusion: the and about not the is process this about notice However, concerned. the person prescribes the type of evidence to be submitted with an application, a procedure such such procedure a application, an with submitted be to evidence of type the prescribes in applicant the by suffered that as an ‘up-to-date report from at least one suitably qualified expert.’ qualified suitably one least at from report an ‘up-to-date 30 mental disability advocacy center who have financial interests or other illegitimate motivations haveforintended filing protectto mentally a guardianship ‘healthy’ individuals fromunscrupulous relatives impression of the adult at the outset of personthe case,to itbe placedis likelyunder guardianship.’that the Supreme Court ofmay this procedure are mainly related to the requirement for direct interrogationinvolved. of the guardianshipproceeding must tobeconduct theobligatory interview oftheperson SupremeexplicitlawCourtiscase thatthefirst order of business forthe a court in telegram or even a phone call. receivesadult have been notified. witness’sa requirementssignature.these If met,thenhe/sheare deemedbe to will telex.and providewritten verification. must official relevant the case which possible,in also notification is fax phoneor notice is unsuccessful, the notice may be sent by post via registered delivery. attorneybeengiven.noticemustthat signhas official court 86 95 9 9 92 9 90 89 88 8 4 3 1 7
Civil Procedure Code, art. art. Code, Procedure Civil may service then accomplished be must service where locale the in court no is there If or gathering any other evidence. Supreme Court of Cassation, Decree Decree Cassation, of Court Supreme evidence. other any gathering or relatives experts, interrogating before even concerned the person is to The judge interview can concerned person the notice, the accept to refuses member family a if even Further, art. Code, Procedure Civil art Code, Procedure Civil art Code, Procedure Civil Civil Code, Procedure art 41, para 3. In urgent cases, the adult may be bynotified telephone, art. Code, Procedure Civil translation). not does sent stake. was at are rights fax their that a notified been or has involved for person the that signed ensure was notice that demonstration mere adult, the of hands the into directly delivered not is notice the If notified. been have to deemed be still legislation. the in unclear is service of type this permits that ‘urgency’ an constitutes what however, telegram; by or fax telex, cases in delivery with if reasons. or the privacy verify delivered, impossible, was was of must notice the notice whom to and protection giving manner date, person the the The signature for capacity. his/her and provision health such mental protecting the of no means involving is a as there neighbours privacy, the to is marital summons server the the claims, presenting matrimonial from involving cases prohibited in involved. while person that the note to to summons the interesting is hand It to obliged is the and the receives receipt a person from This signs person neighbour. a summons, adult then an available, on is family summons no if the or serve family person’s shall he person, involved the find to art. Code, Procedure Civil city-council, the 41 or municipality the through out carried be Supreme Court of Cassation, Decision N1664/21.06.1976 (case number 1051/76) (Unofficial , para 2. para , 94 9 The apparent reasoning forthe obligatory interview isthat ‘the peculiarities 1 If an adult refuses to accept the notice, the refusal must be verifiedmustbe by notice, acceptthetorefusal adult the refuses an If 86 actual who must sign for the date and manner of service. of manner and date the for sign must who 92 notice, because there is no way to know who receives a fax, fax, a receiveswho know to way no is there because notice, While the While procedures are detailed, they to fail ensure that the 90 47 41 41 4 6, para. 2. para. 6, The procedure for is similar notification by telegram 93 41 . para , para ,
, para para , 4 5 . . 1 The law provides that in case the deliverer fails fails deliverer the case in that provides law The 95 By requiring the judge to obtain a personal 88 In cases whereof personal servicecases In 5 / 7 9/ 87 13 The adult or adult The .02. 1 980. 89 Tele - human rights and guardianship in bulgaria 31
99 992, SG No. 1 If the adult is ill is adult the If of 97 55 . 3 , SG No 3 98 ). 1 4 8). 7 The Memorandum Explanatory 0/ 1 00 980, para. 1 0 089/8 1 1 1
.02. 98 13 9/ 7 / 5 8 (case number 8 (case number /2002), provides that parties who fail to appear in court 7 7 5 9 9 0 , (amended SG No 28 of 1 1 1 The right to be present and heard during court . 71 7 2. 2. 1 5 .0 2. 14 1 / 892/ 133 1 of Recommendation No. R(99)4 makes clear it R(99)4 that No. the adult of Recommendation 999, para. The language used in the Principle recognizes that for an adult, recognizes for an adult, that language The Principle used in the on principles concerning the legal protection of incapable adults.Adopted 1 1 11 4 ; amended, SG 0 (2) also provides an exception to the notice when such ‘would be manifestly , 1 7 3 11 99 999) The Supreme Court has held that the questioning during this interview interview this during questioning the that held has Court Supreme The 1 1 96 , Decision N , Decision N2 of 4 2 Council of Europe, Committee of Ministers. Explanatory Memorandum to Recommendationto MemorandumExplanatoryMinisters. of CommitteeEurope, of Council No. R( February 2 Principle additiontothis, itseems unlikely that awareness ofsuch proceedings would putanadult’s health in ‘severe danger’. after receiving valid service may be fined by the court. without meaning to the person concerned or would present a severe danger to of thethe personhealth concerned.’ It is the position of MDAC that notice of such a hearing should alwaysbeprovided asthere isno disadvantage toproviding notice inall situations and, in Ibid Ibid Civil Procedure Code, art. Supreme Court of Cassation, Decree 1
1
0 00 7 1 1 96 9 98 99 notice as prescribed by general civil procedure law may not convey the meaning or or meaning the convey not may law procedure civil general by as prescribed notice possible A given. be must notice actual Therefore, proceedings. the of ramifications to solution otherwise vague laws is to a incorporate such provision as that in the to to Recommendation No. R(99)4 reiterates safeguard, citing the the requirements of Article necessity 6 of the of European on Convention this Rights.Human procedural must be informed of the proceedings, and that this must be done ‘in a language, or language,or a ‘in done be must this that and proceedings, the of informed be must by other means, which he or she understands.’ Human the as Rights proceedings, the of Standards: notice receive to right the to linked directly is proceedings right to and be heard present cannot meaningfulbe without exercised and actual Principle notice. proceedings for appointment of a guardian, neither the presence nor the opinion of opinion the nor presence the neither a of guardian, appointment for proceedings law. by required is adult the been been notified, the court may proceed despite the of non-appearance any party. until all the cases court at proceeding must least delay this, however, doing Before during with thehave parties been administrative present heard first.Additionally, up a possibility that the adult may not participate in other court hearings at which hearings court in other participate not may that the adult up a possibility important evidence may be presented and decisions made. Once the of court the the adult, obtained and impression’ has ‘personal after all parties relevant have has the right to be heard in person during the first court hearing, there is no obligation obligation no guardianship to is subject adult the there that hearing, provides Code court Procedure Civil the Although first the during person in heard be to right the has opening hearings, in any subsequent concerned the on the person court to involve and cannot attend court, the judge must gain a personal impression of the adult by adult the of impression gain a personal must judge the court, attend cannot and hospital. the in or home at adult the visiting mind of the person.’ It is unclear what is meant by ‘quickness of the mind,’ or indeed indeed or mind,’ way the of address should quickness the of capacity, the of ‘intellectual communicating, ‘quickness by meant is what unclear is It person.’ the of mind qualities. these assessing in had have may judges that training the application. 32 mental disability advocacy center to legal defence whenever his rights or legitimate interests are violatedAnalysis: or endangered. therefore illusory for is adults lawyer who a cannot to afford right the to pay exercise of for The representation. charge. ofrepresentation provided free is legal suchthat specify legislation.to the However, failsprovidedin law foris the Conclusion: therefore such proceedings must comply with Humanthe Rights requirementshas held that guardianship of Articlefalls within 6. the category of civil rights whereperson’saand civilrights andobligations question.inare The European Court of ConventionHumanRightsprovidesof cases, including rightstrialforfairin those any proceedings which could affect his orsimply her provideslegal capacity.’ that ‘the person concernedWith respect should to the havesecond the element, right tonamely be to heardbe heard,in personRecommendation in No. R(99)4a provision requiring that ‘notice under this Act must be in plain language’. American Uniform Guardianship and Protective Proceedings Act. This simply adds even in the event that they can payeventforservice.thetheevenincanTherefore,theythat lawyer the right a to of such institutions are unlikely to have the opportunity to search out sociallegal careassistance institutions that are hundreds of kilometers from urban centres. Residentsto lacking funds to hire lawyers, many people facing guardianship proceedingsoblige live thein court to provide a lawyer for the agencyan personofthe state.’ concerned even if asked. In addition haveaccompaniedrightshallHethebeto counsellegalbywhen appearing before Indicator 4 Indicator 1 1 1 1 0 0 0 02 5 4 3
5 was more recently reaffirmed in in reaffirmed recently more was principle This obligations.’ and rights such of ‘determination’ a to amounted capacity that para. 6 of Article meaning the within rights obligations’ and ‘civil affects hence and rights private of exercise the involves property one’s with serve as a model in other jurisdictions. Available at: jurisdictionthroughoutStates;Unitedconsequently,the processprovisionsalso due may its courtsubjectguardians toincapacitatedprocessprotection tofor dueensurepersonsand to endorsedbeenthehasby It American Bar Association. uniformpurposethiswasTheactof model legislation drafted by the National Conference of Commissions on Uniform State Laws. Bulg. Const Bulg. See Principle UniformGuardianshipProtectiveTheProceedingsandSee ( Act (A/ July July 33 The The ConstitutionBulgarian providesthat ‘[e]veryone have the shall right Winterwerp v. Netherlands the Winterwerp ) ) ( 1 999, para. para. 999, 1 The availability of a lawyer to representthe adult subject toguardianship 9 13 7 9) 2 EHRR 2 EHRR 9) . . , ch. II, art. art. II, ch. , representation throughout guardianship proceedings. proceedings. guardianship throughout representation legal effective and free to right a has adult An 51 1 05 . However, it appears thatguardianship legislation does not 3 5 8 6. 7 , in which the Court said that ‘[t]he capacity to deal personally personally deal to capacity ‘[t]he that said Court the which , in Matter v.Slovakia Matter , Application No. 6 No. , Application www.nccusl.org , Application No. No. , Application 3 1 0 [...]. Divesting Mr Winterwerp of of Winterwerp Mr Divesting [...]. 1 / 73 1 , judgment 2 judgment , 03 Article 6 of the European 1 99 visited 7 ) para. ) 31534 1 4 May 200 October October 113 /96, judgment judgment /96, (c). This is This(c). 1 04
7 1 1 02 . 9 7 9, 9, human rights and guardianship in bulgaria 33
0 06 11 1 , - 1 99 1 , .
17 4 . 111 , Application , 51 Mental Illness Mental 1 , Article, 99 4 1
. 999, para. 5 09 1 0 highlights that ‘persons ‘persons that highlights 0 1 1 July , para. Megyeri v. Germany v. Megyeri 5 13 4(3) of the ICCPR are considered considered are ICCPR the of 4(3) 1 /96, judgment free and effective should representation be 31534 08 1 0 Concerning the Protection of the Human Rights and 1 ) 4 Recommendation No. R(2004) No. Recommendation 9 on the Protection of Persons with Mental Illness and the Improve 11 , Application, No. 6/ 4 As the requirements of Article Article of requirements the As 07 1 (6). . 1 7 ment of Mental Health Care, adopted by the General Assembly Principleon December Recommendation No. R(200 Dignity of Persons with Mental Disorder,Adopted 22 September 200 See UN Human Rights Committee, General Comment Principle Matter Slovakia v. UN Resolution No. 13770/88, judgment 12 May 1992, (1992) 15 EHRR 584, para. 23. See, for example, the European Court of Human Rights case Rights Human of Court European the example, for See,
counsel. If the person whose capacity is at issue does not himself or herself secure secure herself or himself not does issue at is capacity whose person to the If person that counsel. 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 ‘Thewhoseperson is capacity at issue shall be to byentitled be a represented 7 0 06 0 08 09 111 1 1 1 1 11 4(3)(d) of the International Covenant on Civil and Political Rights (ICCPR), that Rights (ICCPR), and Political Civil on Covenant the of International 4(3)(d)
Principles, which state: state: which Principles, Deprivation of legal capacity may result in a lifelong placement under guardianship guardianship under placement in a lifelong result may capacity legal of Deprivation and a loss of the right as rights to (such fundamental exercise the right to choose to residence, manage finances, to marry, to vote, and so on). The UN the of in recognized this importance Assembly the General obligation Enforcing this requirement is especially legal by effective this representation providing Enforcing requirement crucial when the person is alleged to lack capacity to him represent or herself. to guardianship procedures is also supported by Recommendation No. R(99)4, which which R(99)4, No. Recommendation by supported also is procedures guardianship to human the protect to safeguards procedural adequate be should ‘there that provides abuses.’ possible prevent to and concerned adult the of rights and obligations. and basic guarantees of a right this of fair Extension proceedings. hearing, all capacity during as a requirement interpreted where liberty is in question, a person must have the right to free legal assistance and and assistance legal free to right the have must person a question, in is liberty where Rights, Human of Court European the by out as pointed is clear, It representation. rights an legal individual’s implicate directly capacity determining that procedures with mental disorder should be entitled to exercise all their civil and political rights. political and civil their all exercise to entitled be should disorder mental with in stated Article explicitly law, of the international principle It is a well-established 1 right for many individuals. individuals. many for right Standards: Rights Human exists theoretically, but because of practical and financial obstacles, itis anobstacles, and illusory of financial practical because but exists theoretically, 34 mental disability advocacy center 1 Accordingtothe Bulgarian Health Act, Article mustbe carried out at medical establishments designated to provide psychiatric care permissiondistrictthebyjudge. the detention and treatment. The detention maypatient be extended and must oncesubmit up a topsychiatric 48 hoursopinion with to thechief court of whichthe medicalprovides establishment the basis is ofobliged to immediately notifypersondetainedsotreated andbemay thefor duration relativesnotlongerhours.24 Thethan of the establishment decides the person’s status so warrants. Under these detentioncircumstances, the and treatment beyond an initial emergency involuntary subject to basis be if dementia maythe senile chief or ‘mental retardation’vascularof the or medical the Health Act and for the purpose of the protectionguardianshipproceedings) of the healthcan be detained, and lifehowever, of others.for compulsory the purposetreatment ofunder obtaining a capacity evaluation.Analysis: A person (including a person involved in cerned merely for the purpose of conducting a capacity evaluation. Conclusion: h Cut ed ht eann a idvda pir o uh n xmnto and examination an such to prior individual an detaining that held Court the court-ordered psychiatric examination, is on its face a permissible action. However, that detaining an individual in order toan fulfil obligationunder the law, suchas a 5 of the Convention and the right to liberty. In detentionofissue relationunderArticle forced psychiatrictheexaminations toin authorized by domestic law.’ whether or not he or she has a mentaldetermining illness exceptto in viewaccordance with a a procedurewith examination medical undergo tocompelled be shall Human Rights Standards: legal capacity assessment. under guardianship, does not provide for detention merely as a means of obtainingwhile a possibly affecting people whoare also involved inguardianship proceedings or a manner that is dangerous or challenging to others. Detention under this provision,establishment is the involuntary treatment of the patient deemed to have behaved in orpsychiatric hospitals. The purpose this placementof inpatient in psychiatriccare 46of the same Act, a person who either suffers from a serious ‘psychiatric disorder,’ Indicator 5 Indicator 114 113 11 2
UN Resolution Resolution UN art. Act, Health 155-165. art. II, sec 5 ch. Health, of Law The ment of Mental Health Care, adopted by the General Assembly on on Assembly General the by adopted Care, Health Mental of ment Principle Principle Bulgarian legislation does not provide for persona tobe detained solely for Bulgarian legislation does not provide for detention of the person con 5 , Medical Examinations. Examinations. Medical , 4 154 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 6/ 11 . 9 on the Protection of Persons with Mental Illness and the Improve the and Illness Mental with Persons of Protection the on 9 11 TheUN MentalIllness Principles statethat ‘No person 4 The EuropeanCourt of HumanRights has examined 11 3 The compulsoryThe accommodation treatmentand 1 Nowicka v. Poland 55,andin connection with Article 17 December December , the Court held 1 99 1 11 - , 2
- human rights and guardianship in bulgaria 35 The 9 11 . 3 8 11 of the European European the of 7 11 and Article 8 (right and Article 8 (right Generally, the party the Generally, 6 20 11 1 November 200 7 The court is not bound by bound not court is The 1 2 1 , judgment 2 5 /9 4 In other cases, the Court additionally held that forced 5 holding that multiple examinations in a short period of time in regarding the length of domestic procedures due to repeated court 11 , Application No. 30218/96, judgment of December 3, 2002, paras. 58-61. paras. 2002, 3, December of judgment 30218/96, No. Application , An adult has the right and opportunity to present his/herown evidence (including witnesses), and to challenge the opposing evidence (witnesses). The hasand adult callevidence andthetoto right present witnesses . 7 ock v. Germany Worwa Worwa v. Poland , art. 157, (2) (Amd. - SG No 124 of 1997, SG, No 64/1999). , art. 59 and 61-62 (Amd. - SG No 124 of 1997). TheCivilfor generally Code Procedure provides both written evidence Ibid Ibid Nowicka v. Poland v. Nowicka connection with similar criminal cases constitutedapplicant’s private life.Applicationan No. 2662 unjustified interference with the Analysis of the practice will be provided in the second stage of guardianship report,in 200 due Civil Procedure Code, art. 157, (1) (Para. 1, suppl. - SG No 28 of 1983). See B See 8/84, judgment 21 February 1989. Application No. 1111 ordered psychiatric examinations.
1 9 6 8 20 2 11 1 1 115 11 117 11 Indicator 6 any of the experts’ opinions, but may consider any them of may in but the consider experts’ light opinions, of all evidence other Knowing presented. about these is protections difficultif the adult is not legally If represented. the adult is not present at the court hearings and not adequately nominate one expert each and the court selecting the third. the selecting court the and each expert one nominate that of asks with also anmust the the exception for assessment for pay assessment court. the by for paid be would which prosecutor the Legislation Legislation provides that expert witnesses must be appointed where the subject that specialized possess. the itself requires court knowledge matter does not up to three court expert may appoint with witnesses, each party having a right to requirement for the adult to be informed of his or her rights. Thus, litigants who are are who litigants Thus, rights. her or his of informed be to adult the for requirement rights. important these of aware be not may lawyers by represented not and has the right to be present for the presentation of witnesses of the opposing party. party. opposing own witnesses the his/her of in cases. Each civil party present may testimony witnesses and witness of presentation the for present be to right no is the has there and However, them. of aware be adult the that requires rights these Exercising examine and challenge the evidence presented by the opposing party. opposing the by presented evidence the challenge and examine Analysis: Conclusion: Conclusion: to involuntarily detain a person. person. a detain involuntarily to to respect for private and family life, home and correspondence) and home life, family and private for respect to on Human Convention the Rights. mere possibility Consequently, that a person itself, by basis, sufficient a not is entirely, partially or either capacity, legal lack may interest in the examination and the individual’s right to liberty, and thus constitutes constitutes thus and liberty, to right individual’s the and examination the in interest a of violation Article 5. fair to Article trial) 6 (right violate examinations psychiatric continued detention after detention the ceases continued obligation to exist fails to balance the State’s 36 mental disability advocacy center incomplete, as well as evidence demonstrating the adult’s functional abilities.topoint out procedural irregularities, such medicalas reports that are out of date or controlof the adult’s finances. Furthermore, having atthis possibilitystage, the of the adult may applicationalso motivated by be able being the and conflicts family light.Forinstance, throughcross examination thecourtablemaybe heartoabout becauseonly when evidence testedis doweaknesses orhidden motivations come to guardianship,adultabilitychallengethethetoofevidence especially isimportant, hearing.fair a ofguarantees theInternational Covenant onCivil andPolitical Rights,which liststheminimum included within the right to a fair trial. This safeguard isalso stated inArticlecounter evidence and the right to present evidence, includingobligations.and calling witnesses, are all HumanRights,which guarantees hearingfairdeterminationsa allin ofcivil rights incapable protection of adults’. the for measures of taking the efficient procedures for and fair be Human Rights Standards: addressed previously in Indicator 3 and 4 are important to this Indicator as well. legislationappointed.be Therefore,short-comings Bulgarian the of can witnesses expert that know subjectwill persona that unlikely is lawyer,itrepresented a by make a decisionamake solely onthebasisofquestioning theadult relatives,and thejudge legalcapacity after questioning the adult and his/her relatives. Analysis: for the contents or quality of the opinion. that the opinion will be a capacity evaluation since there are no minimum standards deprived of legal capacity. If the court requests Conclusion:an expert opinion, there is no assurance Indicator 7 Indicator 1 1 1 1 2 2 2 22 5 4 3
defining minimum guarantees. guarantees. minimum defining Netherlands Civil Procedure Code, art. 276. (Amd. - SG No 28 of 1983) (1). 1983) of 28 No SG - (Amd. 276. art. Code, Procedure Civil Comment General Committee, article Rights Rights, Political and Civil on Covenant International 6( Article of application For Principle No capacity evaluation is required by law: the court can deprive an adult of Legislation does not require a capacity evaluation before an adult is adultevaluation capacityanbefore a require notLegislationdoes 7 ( 1 1 1 23 , Application No. 6 No. , Application ). 22 The The ability challenge case the to the for evidenceparties in with This principle echoesArticle 6( including an in-person evaluation. evaluation. in-person an including information, objective recent, upon based and professional qualified a by conducted evaluation, capacity a of the subject being without capacity legal of deprived is adult No Recommendation No. R(99)4 states that ‘[t]here should 1 24 In the case of proceedings on legal incapacityand legalproceedings on of case the In 1 3 ) to guardianship proceedings, see see proceedings, guardianship to ) 0 1 / 73 , judgment 2 judgment , 13 , para. para. , 5 regarding Article Article regarding 4 1 October October ) of the European Convention on 1 9 14 7 9. ( 1 3 25 )(e). See also Human Human also See )(e). Ifthe judge cannot 14 Winterwerp v. the the v. Winterwerp , subsection subsection , 1 4(3) of 3 as as human rights and guardianship in bulgaria 37 In 1 3 1 of the 17 32 /69). 1 5 6 8/66)andCivil 3 1
2
29 3 Such interference interference Such 1 28 1 30 1 (case number 7 969 (case number 2 1 however such information is not is not information such however 96 1 2. 27 . 1 1 3 .0 Bulgarian law does not specify which which specify not does law Bulgarian ). 4 1 26 2/26. 1 /0 3 9 08/6 315 5 54 . 1 A finding of legal incapacity removes an individual’s right right individual’s an removes incapacity legal of finding A (case number 6, para. 1 7 96 1 , op. cit. .08. 1 , , the European Court of Human Rights cited Recommendation 2. 8/2 1 153 N See Article 8 of the European Convention on Human Principle Rights and Article SupremeCourt Cassation,of Decision N Civil Procedure Code, art. 276.(Amd. - SG No 28 of 1983) para. 2. Supreme Court of Cassation, Decision N Procedure Code, art. 2 Ibid, International Covenant on Civil and Political Rights. Slovakia v. H.F.
7 0 2 26 2 28 29 13 131 13 1 1 1 1 applicant whose capacity was at issue. The Court additionally stated that a request for for request a that stated additionally Court The issue. at was capacity whose adult. applicant the of interests the in been have would report psychiatric second a No. R(99)4 in connection with the obligation to consult recent medical reports in reports medical recent to consult with the obligation in connection R(99)4 No. In the legal Court H.F., determining capacity. found that relying on an outdated the protect to safeguards procedural sufficient to amount not did report psychiatric qualified expert.’ There must There also qualifiedbeexpert.’ toreportan to attestup-to-date the person’s and condition notes that the report resulting should be in recorded writing. H.F. v. Slovakia should therefore contain provisions to ensure that a decision to deprive an of adult to deprive that to a ensure decision provisions contain therefore should legal capacity ‘suitably a is and adult the based between upon meeting current and in-person reliable Recommendation information. thorough a for calls R(99)4 No. to make decisions about all areas of his or her personal and public life. It, therefore, therefore, It, life. public and personal her or his all of areas about decisions make to law. Legislation by international protected with to rights privacy society. interferes democratic a in necessary and law the with accordance in be must relatives) if the court concludes that the adult is ‘mentally healthy’. ‘mentally is adult the that concludes court the if relatives) Standards: Rights Human It should be noted that the Supreme Court has found that the court, after questioning questioning after court, the that found has Court Supreme the that noted be should It the adult, may decide that no other is evidence talking needed (including to the legal capacity, there are no provisions in the law regarding how the assessment should should assessment the how regarding law the in provisions no are there capacity, legal court if the However, contain. should report the information what or conducted be reasons. provide must it conclusions, report’s the accept to refuses necessarily a capacity evaluation. If the judge orders an expert to conduct an assessment assessment an conduct to condition medical expert an adult’s the about orders information judge the If evaluation. capacity a necessarily and a present for report the or whether of purpose not the determining adult has a medical opinion of any kind. kind. any of opinion medical a Thelaw states thatif theadult is in a medical the judgeinstitution shall request relatives should be questioned or the subject matter of the questioning. Therefore, it is it Therefore, questioning. the of matter subject the or questioned be the should for and relatives guardian, a needs adult the that judge a convince to relative a or for assessment possible capacity a seeking without guardianship, under adult the place to court may collect other evidence and hear experts. hear and evidence other collect may 38 mental disability advocacy center two criteria necessary for placement of a person under guardianship: ( condition will be placed under partial incapacity. The law seems to saythat there are his/heraffairs. if,due to his/her intellectual disability or mental ‘disease,’ he/she cannot take care of onIndividuals Familyandprovides personthata foundmay beincapacitated fully rights and interests of those under guardianship or trusteeship’. Analysis: partial and plenary incapacity. between distinguish individual’s condition mental to the of severity the assessing his/herpersonal shouldaffairs measuredbe and providesguidance no for courts in partiallyincapacitated. The law fails to specify howthe person’s inability to manage that it provides merely that individuals who have a less severe condition shallaffairs be only appropriate in cases where the person concerned cannot take care of his/her personalConclusion: 2.6.3 of the disability,which the of needdifferent levels of protection the based nature,on seriousnessand fluctuation needs. This reflects an understanding that mental disabilities may fluctuate.and Peoplecircumstances her or his to tailored andadult’s capacity an of degree the to tionality states that limitation or deprivation of legal capacity must be proportional indicator invokes This also the several R(99)4of principles. Principle 6 on propor or deprivation of legal capacity. illness.’ There musttherefore be a demonstrableexceptfor purposes directly relating link tomental betweenillness or theconsequences a diagnosisof mental and limitationpersonclassifyahaving, asor otherwise indicate personthatamental a has, illness authorityprinciplePrinciplesIllnesspersonorshallat ‘Nostates4(5) whichthat, HumanRightsStandards: legislation for how these criteria should be evaluated and decidedcorresponding ofcauseupon inability.by the However,court. guidancefurtherthewithinno thereis theory, the in least at be, disability mental must the words, other In affairs. own ofa mentaldisability and, (2) due tothis disability, the inability totake careof one’s Indicator 8 Indicator 134 133
(Indicators 8-12) (Indicators Quality of Evidence Provided to the Court in Incapacity Cases Cases Incapacity in Court the to Provided Evidence of Quality Law of Individuals and the Family, para. para. Family, the and Individuals of Law ch. Code, Family due to The Family Code statesthat the purpose ofguardianship is ‘protection ofthe a mental condition. In the case of partial incapacity, the law is weaker in Bulgarian legislation provides that a finding of full incapacity is incapacity full of finding a that provides legislation Bulgarian 1 34 The The provision further provides severepersonless that a a who has inability to make independent decisions. independent make to inability alleged the and diagnosis underlying the between link demonstrable a requires incapacity of finding A 1 , art. 2. (Amend SG SG (Amend 2. art. , may vary throughout a person’s life. Principles 7 and person’sPrinciples7 life.a throughout vary may This indicator finds express support in the UN Mental 11 5 /92). , (Amend SG 89/ SG (Amend , 53 ). 1 33 The BulgarianLaw 1 ) the existence 1 2 - human rights and guardianship in bulgaria 39 - However, However, 35 1 /68). 557 There is an inherent inherent an is There 36 1 968 (case number 1 . 11 /20. 5 /92) 11 . (Amend SG 4 This indicator looks at two elements of the incapacity of at thelooksincapacity twoelements Thisindicator The phrase ‘qualified expert’ is not defined, but should should but defined, not is expert’ ‘qualified phrase The 37 1 , art. 2, 1 A finding of incapacity is based upon sufficient evidenceand serves the interests of the adult. 2. 1 The law fails to specify the type of evidence required to deprive or restrict restrict or deprive to required evidence of type the specify to fails law The Irrespective of the form of guardianship suggested in an application, the in an suggested of application, of the guardianship form Irrespective Supreme Court of Cassation, Decision N289 Family Code, ch. Principle
6 135 13 137 Indicator 9 expert must be submitted. be must expert specialized with possibly psychologist, or psychiatrist a to as referring understood be practitioner. medical general a than rather assessment, capacity in training Evidence must meet qualitative standards. Recommendation No. R(99)4 requires that that requires R(99)4 No. Recommendation standards. qualitative meet must Evidence qualified a from report up-to-date an that and personally adult the see should judges Human Human Rights Standards: the to submitted basis evidentiary the – guardianship subsequent and determination interests. adult’s the upon ruling the of impact the and court domestic independent interests of the adult concerned, may the of leave with the adult interests inadequate concerned, adult independent members. family unscrupulous from protection the the rights and of Thefamily interests who greatlack deference members capacity. in shown the with the law coupled the family towards fact serve members, that court there is the by no made decisions the that requiring law the in provision specific is both an objective of the law and a function of the family to provide ‘protection of of ‘protection provide to family the of function a and law the of an objective both is guardianship.’ legal full under those of interests and rights the assumption in the law, that therefore, the family should and will act to protect there there are no clear legal standards as to to adequately to the requirements minimum evidentiary applicant the require not does law the Further, an application. sustain it that states Code Family The filing. to prior evidence with application the support Bulgarian court is obliged to take into consideration all of the evidence gathered and and Analysis: gathered evidence the of all consideration into take to obliged is court evidence. Bulgarian the on based decision a issue and hearings the during presented an adult’s legal capacity. The law fails to specify a standard of proof. There is no legal no is There proof. of standard a specify to fails law The capacity. legal adult. the adult’s an of interests best the on decision its base court the that requirement Conclusion: Conclusion: human rights standards suggests that legal capacity should be restricted only to the the to only restricted be should capacity legal that suggests standards rights human guardianship. the of purpose the carry necessaryout to extent is is an issue of fundamental Article fairness. 8 Furthermore, of the European Con on Human vention Rights mandates that private with any a interference person’s life should to be the proportionate aims pursued. Compliance with international provide that an adequate investigation and assessment of an adult’s particular needs needs particular adult’s an of assessment and investigation adequate an that provide 40 mental disability advocacy center person should be the paramountpersontheconsideration’.should be menting a measure of protection of an incapable adultSecondly, the interestssuggestedas byRecommendation and welfareNo. R(99)4,of that ‘[i]n establishing or imple the functional capacity of the individual at the time of the hearing. substitute. The Courtfurther observedthat reports must be recent in order to reflect under the Convention, and that lay (non-professional) witnessesnot are notonly a reiteratessatisfactory that an expert report is necessary for States oldweretonotsufficient meet evidence ofa theirfindingincapacity. for obligationThe decision, therefore, witnessesin combination with a psychiatric evaluation that was one and a half years adult’s thestatementslayformer bythatheldandspousemade Court the ruling, the necessity of a qualified expert report to determineAs referred tocapacity. above, the European Court of Human Rights has already emphasized guardianship authority rather than the court. other circumstances, the selection and appointment of thebe convened. guardian is a matter for the gives preference to their appointment as guardian and a guardianship boardAnalysis: need not person concerned are considered and given duethose weight. needs. Additionally, there is nothan legislativeon the individual provision needs ofto theensure adult that orbecause thethe wishesprospectivethe selectionof theguardians’ of plan thefor guardianmeeting Conclusion: is primarily based upon familial relationships rather prescribed in Principles 5 and 6. ceedings in order to meet the necessity, subsidiarity, rightandto work proportionalityis restricted. Such requirementsaspects should be thoroughly examined during pro self-esteem, guardianship may not be in the adult’s best adult.’interestsFor if,example, employmentasas a resultimportantisan ofsource ofit,social interaction the and surenecessary,is intotaking account theindividual circumstances needsandof an of Recommendation No. R(99)4, restriction should not be imposed ‘unlessshould the mea be weighed against any possible negative consequences.circumstances As muststated be intaken Principleinto account 5 and the protection offered byguardianship Indicator Indicator 141 14 13 13 0 9 8
Principle 8( Principle H.F.v. Slovakia Family Code, art. art. Code, Family art. Code, Family If the adult’stheIf lawspouse parentstheserveavailable ortoare willing and Legislation does not provide sufficient criteria for evaluation of the guardian
1 1 40 0 The guardianship authority is notthen involved inthe case. 1 ). ). , Application No. No. , Application 1 1 28, para. para. 28, para. 28, and the wishes and feelings of the adult are considered. considered. are adult the of feelings and wishes the and criteria objective on based is guardian a of Selection 4 3 . . 547 9 7 /00, judgment of November 8, 200 8, November of judgment /00, 1 39 To achieve this, the individual’sTotheachievethis, 1 38 In its H.F. v. Slovakia 1 5 4 . 1 In all - - -
human rights and guardianship in bulgaria 41 Apart from from Apart there are no no are there 42 43 1 1
44 1 The fact that the the fact that The 46 1 While the law does does While law the 47 1 It also suggests that States States that suggests also It 48 1 Thereis no on furtherelaboration in 45 1 . 1 , para. 113 Recommendation No. R(99)4 provides that the primary primary the that provides R(99)4 No. Recommendation and art. 6. 1 11 , para. . 2. 111 11 111 , art. , art. , art. According to the Family Code the guardian is always one person and he/she is to be Family Code, art. Principle 8(2). Family Code, art. et 111, seq. assisted in fulfilment of his/her duties byguardianship the board deputy-guardian(in cases of plenary guardianship). and the members of the Ibid Ibid Ibid
8 2 6 147 14 14 143 144 145 14 ‘safeguard and promote the adult’s interests and welfare’. and interests adult’s the promote and ‘safeguard training such ascreating available, are guardians that qualified to ensure take steps concern in assessing the suitability of a guardian should be the ability of that person to to person that of ability Standards: the Rights be Human should guardian a of suitability the assessing in concern Bulgarian legislation does not stipulate that the adult must be consulted or that any any that or consulted be must adult the that stipulate not does legislation Bulgarian be who should the regarding guardian by concerned the expressed person opinion decisions. any making in considered be even is no prohibition against the directors or staff of institutions in which a person resides resides person a which in institutions of staff or directors the against prohibition no is guardian. as acting from life, mercenary conduct, contradiction with the interests of those under guardianship guardianship under those of interests the with contradiction conduct, mercenary life, fulfillto functions.’ guardian are unable reasons, other for or there that notable is it guardians, be to corporations public or agencies for allow not guardian or as a member of a guardianship board, including: a person who has been been has who person a including: board, guardianship for a of convicted member a as or person guardian a rights; immoral parental of alcoholism, deprived person sickness, a to capacity; legal due of who deprived ‘persons as well as crimes; intentional serious of the person under guardianship require. require. guardianship under person the of Thelaw ofseveralindicates categories whopeople from areserving prohibited as that the family will act in the best interests of the person concerned; the law does not not does law the concerned; person the of interests best the in act will family the that a the appear to guardianship rebuttal of However, contemplate interests this the presumption. where board guardianship the of membership the change may authority the law regarding how this is to be implemented and evaluated. and this is be implemented to how regarding law the the among from board the guardianship to select is obliged authority guardianship suggests a of presumption the concerned and person acquaintances’ close ‘relatives The guardianship authority must convene members ofmembers mustThe a authority convene guardianship board guardianship who will ‘best interests’. care for [the person’s] should include people with ‘pedagogical training’ though precisely what this means or or means this what to precisely any undergo training but though it does state the training’ that guardian possible, where board ‘pedagogical with people include should unclear. is play would training’ ‘pedagogical with persons role what board to assist the guardian in carrying out the duties of the position. the of duties the out carrying in guardian the assist to guardian, board as adult the of friends and relatives guardian the appoint to require not does preference the law The selected. be should who for criteria stated other When the guardianship authority appoints the guardian, it also appoints a guardianship guardianship a appoints also it guardian, the appoints authority guardianship the When 42 mental disability advocacy center Conclusion: it is particularly important in choosing the guardian. This principle applies toall stages of establishingand present implementingwishes and feelings guardianship, of the adult should but be ascertained and given due respect. PrincipleRecommendationof 9 No.R(99)4 providesand pastrespect thatthefor istin some families and recognise the dangers these conflicts may present. recognised and valued, the law must be aware that acute conflicts of interest may ex mendation warns that whilst the invaluable and irreplaceable rolepossible, asof far relativesgiven duerespect’. must be ofanyperson torepresent orassist himorher should betakeninto account and, as According to Recommendation No. R(99)4, ‘the wishes of the adult as to the choice of the duties required. guardianshould be determined based on skill, experience and the nature and extent guardian.For example, Finnish legislation states thatthe suitability ofprospectivea a appointed as be individual to an attributes specific for qualities foror necessary associations. pursuing policies of de-institutionalisation liveinstitution.theandtoin establishment Directors guardiansas therefore of communityoneareobstaclestheof toservices. funding but, at the same time, an adult undermaintaining the director’sa number ofguardianship residents may notinposes isconflictswant the both and actual potential.institution For example, director a to dependentis continue on to receivesocial, medicalgovernmental and financial decisions of adults Therefore,residing in having the directorshomes that of institutions they operate be legally responsiblesmooththeoperations theirforoffacilities making importanteconomically, therapeutically otherwise.and residents of the institution. under adult the with interest guardianship. of Therefore, conflict perceived directors or socialinstitutions care of guardians actual as of act may an withsomeone Analysis: guardianship from appointment of a guardian with a conflict of interest. Indicator Indicator 153 15 151 15 14 2 0 9
practice. practice. http://www. 2007. at: May 1 on Available accessed last Government. Finnish finlex.fi/en/laki/kaannokset/1999/en19990442.pdf, the of service a FINLEX, by provided This will further be explored in the Stage Two report on how guardianship works in in works guardianship how on report Two Stage the in explored be further will This R(99) No. Recommendation to Memorandum Explanatory R(99) No. Recommendation translation Unofficial 5. Section 2, Chapter 442/99, (Finland), Act, Services Guardianship Principle Bulgarianlegislation silentpossibilitytheison appointing ofguardian as 1 49 11 ugras eilto de nt dqaey rtc te esn under person the protect adequately not doesBulgaria’s legislation This Indicator assesses whether legislation prescribes requirements legislation prescribes whether assesses Indicator This 17 . 1 50 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
1 53 Directors of such institutions are responsible for ensuring 4 , Principle 9(2). Principle , 1 5 1 The Explanatory The Memorandumthe Recomto 4 , para. para. , 44 . 1 52 Finally,
- - human rights and guardianship in bulgaria 43
55 1 The 57 1 6, which which 6, 1
56 1 999 obliging the the obliging 999 1 420, applicable to adults under
54 1 1, Title X, Chapter II, Article Conflicts between an appointed representative and the the and representative appointed an between Conflicts . 3 2 1 6. 1 , Standard National Guardianship Association, ‘Standards of Adopted Practice,’ by the NGA Board Family Code, art. French Civil Code Book of Directors, Ratified by Membership the in NGA June 2000, Edited Edition 2002, page 9. State College, is Pennsylvania. used MDAC in note: this the quotation word has ‘ward’ the same meaning as ‘adult’, which is the term, used throughout this report. Ibid guardianship per Title XI, Chapter III, last Legifrance, Article a service of at: the www.legifrance.gouv.fr, French Available Government. 495. Unofficial translation provided by accessed on 1 May 2007.
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 when dealing with the needs of the ward. Impropriety or conflict of interest arises arises interest of conflict or Impropriety ward. the of needs the with dealing when as perceived be can that interest agency or personal some has guardian the where ‘The guardian shall avoid even the appearance of a conflict of interest or impropriety impropriety or interest of conflict a of appearance the even avoid shall guardian ‘The 6 157 154 155 15 from service providers on behalf of the adult. Clearly, an impossible situation arises situation an impossible Clearly, the adult. of behalf on providers service from interest. of conflict a has guardian the provider, service the also is guardian the when This document goes on to state: ‘a guardian who is not a family guardian shall not anot shall not isfamily guardian who ‘a guardian toonstate: goes document This directly housing, medical, legal provide or other direct services to a ward’. services quality or poor inadequate guardian has inappropriate, a to challenge duty
American membership organisation of guardians and legal professionals, address the the address professionals, legal and guardians of organisation membership American Standard in adult an and a guardian between interest of conflicts of issue that: states supervisory guardian’ is appointed who, among other duties, is designated to represent represent to designated is duties, other among who, appointed is guardian’ supervisory the adult when his or her are interests in conflict with the interests. guardian’s TheStandardsof byPractice adopted an theGuardianship NationalAssociation, adult are not directly addressed by Recommendation No. R(99)4. Best practices from from practices Best Rights Standards: Human R(99)4. No. Recommendation by addressed directly ‘additional an not that are adult provides directly legislation where France, includes countries other provision would apply. Nonetheless, if such Nonetheless, exist, circumstances would the apply. guardianship provision attorney. special a appoint also may authority Bulgarian Bulgarian law that provides where the guardian is unable to fulfillor obligations a ofconflict arisesinterest between guardian andadult, thedeputy guardian can for the guardian. Thelaw isas substitute silent toin which the circumstances this directors to who didnot have of allsocial care to residents directors filehomes applications guardianship. under placed parents or guardian a have already The Ministry of Labour and Social Policy issued an instruction in in instruction an issued Policy Social and Labour of Ministry The 44 mental disability advocacy center subject to appeal. their guardian, file such appeals. In suchcases, the decision ofthe districtguardianshipauthority. court is Peoplenot under partialguardianship may, withthe consent of havingbeen deemed to lack capacity,all is not eligible to appeal the decisions of the interested parties or by the byprosecutor. courtdistrict the toappealed beHowever,authorityguardianship maythe Decisions of a person under plenary guardianship, notifying him/her of the decision. decisionannounced,hassheisor he presentnotthewhen personis the announced.decision Ifwherethe washearing Code allows a person capacity decisions. provisions litigants.These The apply to ofprobablyalso rights guardianship The Civil cases.Procedure Code outlines general in the terms appeal Analysis: decisions of the guardianship authority. plenary.orpartial However, is peopleonlyguardianshipappealundermaypartial Conclusion: or how to go about challenging the decision. may not have the capacity to know that there have beenfor others proceduralto appeal adecision or otheron the adult’s violationsbehalf becan crucial, because the adult at issue, by their personal representative or other individuals. guarantee the right to appeal a decision to a highertheMentalUN Illness courtPrinciples, by thereaffirms the UN’sadult positionwhose and requirescapacity States to is ‘the right of appeal to higher authorities’. provide‘proper legalsafeguards againstevery form ofabuse’ andmust besubject to that when a person’s rights are restricted, the procedureUnited Nationsused for Declarationsuch restrictions on the mustRights of Mentally byPrinciple Retarded Persons,7of Recommendation whichNo. R(99)4. states The Recommendation relies onthe aspect of procedural fairness and human rights safeguards, both ofHuman which Rights are Standards:required Indicator Indicator 1 1 15 15 6 60 1 9 8
1 on Assembly General the by adopted Care, Health Mental of Improvement UN Resolution General Resolution by UN Proclaimed Persons, Retarded Mentally 28 resolution of Assembly Rights the of Declaration UN art. Code, Family art. Code, Procedure Civil 99 1 Bulgarian law does notspecificallydoes law Bulgarianallow prohibit for or rights appeal in , Principle Principle , 1 The adult has the right to appeal a finding of incapacity it whether of finding a appeal to right the has adult The 2 1 59 1 (6). 4 115 1 and/or the appointment of a guardian. guardian. a of appointment the and/or incapacity of finding a appeal to right the has adult An 6/ 4 days to filean appeal ifthat person was present atthe court 11 . 9 on the Protection of Persons with Mental Illness and the the and Illness Mental with Persons of Protection the on 9 5 6 (XXVI) of 20 December December 20 of (XXVI) 6 The right to appeal a decision of incapacity isan important 1 96, para ( para 96, 1 58 1 1 ) and art. art. and ) 4 days from the date of the communicationtheofdatefromthe days 4 1 60 A subsequent United Nations Resolution, 1 9 7 1 . 9 71 . 1 6 1 Legislation providing 17 December December human rights and guardianship in bulgaria 45 -
, also 3, 64 1 990, art. 1990, . 1
. 68 4 1 (2), 9 3 . 7 ). April 2000, art. 2 1 5
66 , 2 1 Thus the prohibition against voting voting against prohibition the Thus 34 65 999, art. ch. IV, art. ch.9 IV, 1 . 1 , art. 22( 4 onst 99 and the right to be elected and serve in the the in serve and elected be to right the and 1 ). 62 . C 1 1
2( ulg 4 B
. , 28 December 67 9, 22 July 4 1 5 113 ch. II, art. . By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercisepolitical rights. These rights are denied to all people under partial and plenary plenary and partial under people all to denied are rights These 63 1 3 infcn ad uoai dpiain of Significant and deprivations this automatic right exist for people 1 ), Law for the Great National Assembly, SG 28, 6 April 6 28, SG Assembly, National Great the for Law 65(1), art. II, ch. . The Constitution of Bulgaria restricts the rights of people deprived of legal legal of deprived people of rights the restricts Bulgaria of Constitution The Law for Political Parties, art. Law for Judicial Power, SG Law for Cooperatives, SG Law for Cadastre and Real Estate Register, SG Bulgarian Constitution By virtue of the fact that a person under guardianship is not eligible to be elected to Presidency andVice-Presidency. Ibid the National Assembly, a person under guardianship is similarly disqualified from the Member of the Supreme Judicial Council. Judicial Supreme the of Member cooperatives. of Member property). real of registrar (the cadastre the of Employee April 2001, art. 3. SG 37, 13 Assembly, Law for Elections for Members of the National Rights of the Adult After Guardianship Is Established (Indicators 13-17)
7 address these residual rights, including the right to vote, the right to work, the the work, to right the vote, to right the including rights, residual these address 7 5 7 4 1 6 66 6 68 62 6 1 1 1 1 1 163 1 Indicator 3- for people under guardianship also leads to prohibitions on other activities of political political of activities other on prohibitions to leads also guardianship under people for profes or office public holding from are prohibited guardianship under Adults life. including: sions, The Law for Political Parties provides that political parties can only be established by established be only can parties political that provides Parties Political for Law The vote. to right the have who citizens Bulgarian capacity in two areas: the right to vote to right the areas: two in capacity Assembly. National ability. functional of level individual actual, their of regardless guardianship, under both partial and plenary guardianship. plenary and partial both under Analysis: Conclusion: Conclusion: his or her family life, and the right to associate. associate. to right the and life, family her or his many areas as possible, as well as the opportunity to exercise those rights. Indicators Indicators rights. those exercise to opportunity as the well as as possible, areas many of respect to right the family, a found to 1 right the marry, to right the property, to right International human rights law requires domestic legislation to ensure that an individual individual an that ensure to legislation domestic requires law rights human International in as to rights make retains or partial decisions plenary guardianship under placed 2.6.4 46 mental disability advocacy center at any time when his or her capacity permitsdeprive him or heran to doadult so’. of the right emphasisesto vote, that a measureor toof protection[…]dynamic thecapacitynature ofas suchwellmakeover time.Recommendation as as otherguardianship No.R(99)4decisions ‘should notof automaticallya personal incorporatecharacter guardianship laws that recognise Recommendationtheof existenceNo.R(99)4, of whichvariousdenotes thatlegislative degrees frameworks ofneed to capacity disabilities, therightautonomy to andself-determination elaboratedis Principlein and toparticipate 3 insuch activities’. thereforeItis important thatpeople withdisabilities exercisecan theirrights voteto diversitythecitizens itsofbenefitand from their varied experienceknowledge. and with mental disabilities, the Council of Europe Regardinghas statedpublic participation that ‘[s]ocietyandparticipation the democraticinneeds toprocess reflect ofpeople opinion of the people in the choice of the legislature.’ intervals by secret ballot, under conditions which will provideselectionsreasonableStatesensure‘undertakeholdRightsfreeatthatHumanto the free expression of the Rights.additionIn tothis,ArticleofProtocol3 has been recognised internationally in Article 25 Humanof Rights Standardsthe Covenant on Civil and Political not allowed to hold the following positions and professions: underguardianship. employment with the exception of certain types of jobs that are prohibitedindependently forsigningemployment people contracts. Guardians,however, consentmayto Analysis: people under both partial and plenary guardianship. Conclusion: Indicator Indicator 173 17 171 170 1 69 2
Law forLocalGoverningand Administration, SG 77,17September 199,art.30(4). No. (2006) improving the quality of life of people with disabilities in Europe 2006-2015, Recommendation Member of the Municipality Council. Member or Chairperson of the Economic and Social Council. Law for Individuals and Families, Chapter 1, para 1-5. para 1, Chapter Families, and Individuals for Law R(99) No. Recommendation SG Council, Social and Economic for Law ActionPlanpromoteto therights andfullparticipation peopleof withdisabilities society:in Adultsunderguardianshiplegallyprohibitedplenarypartial areor from 1 Significant and automatic deprivations of the right to work exist for exist work automaticSignificant and to right deprivationsthe of 4 5 of the Committee of Ministers of the Council of Europe, para. 1 73 Specifically, adults under plenary guardianship partial or are right to work. work. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By : The right to political participationand universal suffrage 4 , Principle Principle , 1 7 1 Specifically addressing individuals with mental 3 (2). (2). 41 1 70 , 2 ,
4 April 200 April 1 to thetoEuropean Convention on 1 , art. 9( art. , 1 72 1
). 3 . 1 1 69 . 1
. human rights and guardianship in bulgaria 47 ). 1 0( 4 , sentence 2.
35 996, art. 77 1 1
Recommendation Recommendation (2) of the European 80 1 88 . 1 15 (2). 3 ), sentence 8. 7 996, art. . 1 1 3 8( Both the International 5 November 87 1 1 ).
, ), sentence 2. 1 6; Article 3 ), sentence 2. 1 , art. 82 ( 7 ), sentence 1 1 5 ( 1 9 1 5 1 99 ), sentence , 1 1 9b( 3 ( , 6 December 3 7 4 , art. 8. , art. 0 4 4 996. 1 , 28 June 2002, art. January 2002, art. 8(2). 1 , art 3 998, art. 2 8(2). 4 , 7 1 1 , 3 Therefore, while some restriction may be may restriction some while Therefore, 1 99 89 1 999, art. December 1 1 7
, art. June 200 86 1 5 1 9 June 2, 2 1 , 2 July 11 7 0, September 2002, art. 29( December 200
55 7 7 1 , Principle 6. , 2 79 8 17 4 1 7 1 Article 8 of the European Convention on Human 0, April 200 7 , 29 December 11 5 , para 29. 2 7
2, 2 1
, Application13710/88,No.December(A/251-1992,judgment 16,,of 4 74 85 1
1 6, entered into force on March 2 76 1 31
83 6 EHRR 9 1
1 75 84 1 ) 78 1 1 3 99 1 Article 6 of the International Covenant onDocument A/6 Economic, Social and Cultural Rights, UN Recommendation No. R(99) Law forTertiary Education, SG Law for Crafts, SG Law for Mediation, SG Law for Commodity Exchange and Market Places, SG 9 Law for Forests, SG Family Code, ch. 7, art. 73 et. seq. LawAttorneys for at SG Law, Law for Notaries and the NotaryActivity, SG Law for State Servant, SG 6 Law for Protection of Personal Data, SG Law for Health Insurance, SG Law for Bankruptcy, SG 92, 2 Law for Safe Usage of Nuclear Power, SG 6 Social Charter (revised), Strasbourg, May Niemietz v. Germany Niemietzv. Broker. forester. Private onlyThe that tosubject law persons does partial contemplate guardianship work. from money earn might Funds. bankruptcy. in Assignee Regulation. Power Nuclear for Agency the of Chairperson university. a at Professor Chamber. Crafts Regional the of Management Mediator. Attorney at law. at Attorney Notary. servant. Civil Data. Personal of Protection for Commission the of Member Director or of Deputy-Director the State or Regional Health Insurance B) (
3 4 5 7 1 6 8 9 88 89 82 8 8 8 86 8 80 8 1 1 1 1 1 1 1 1 175 17 177 17 17 1 1 174 proportional to the degree of the capacity of an adult and tailored to the individual individual the to tailored and adult an of capacity the of degree the to proportional person. the of needs and circumstances Covenant Covenant on Economic, Social and Cultural Rights work. to and right the the protecting Revised European provisions contain Charter Social that a is be where provides it measure should necessary, of protection R(99)4 No. private life, notably life, explaining private notably that, ‘it is, after all, in the course of their working opportunity greatest, not the a ifsignificant, have people of that lives the majority of developing relationships with the outside world’. Human Rights Standards: Rights guarantees respect for life, private and case law of the European Court of part of be considered should RightsHuman work has to clear that made right the 48 mental disability advocacy center from performingactions.fromlegal managing their money and property by prohibiting those transactionsunder of aneverydayplenary nature. guardianship guardian. Only adults under partial guardianship are allowed to responsibilityenterunderguardianshipthebecauseall handedto monetary for issuesis legally-effective Analysis: people under both partial and plenary guardianship. Conclusion: to their employment’. must not discriminate personsagainst with disabilities and must not raise obstacles employmentfieldthe in regulations and‘[l]aws that provideswhichDisabilities, OpportunitiesofEqualizationonthe for RulesPersons Standard UN with theto so. do todespite capacityactivitiestheir and under guardianship excludes individuals from participating in certain aspects of life situations,prohibitionblanket certain a in necessary employmenton people all of propertyis protected inArticle therefore one’smanage and decisionsuse own right to made.The tailor shouldbe functional capacity fluctuates, that often and reality, is the which reflect notdoes aspect of their finances underminesthe adult’s any autonomy managing fromand individuals automatically excludes dignity. that systemSuch guardianshipa system contracts. A binding legally enter complete and transactions finances, manage to HumanRights Standards: contracts of any kind. Under plenary guardian. or thepartial guardianship, of consent the adults withare onlylegally property his/herprevented concerning action legalfrom entering into ‘every-day needs’ means. performto actionslegal onlyforevery-day needsbut theredefinitionno is whatof Indicator Indicator 1 1 1 1 1 1 9 9 9 92 9 90 5 4 3 1
Ibid Ibid Ibid Rule and trainingongroundsincluding disability. Specifically, see Articles 1,2and5. employment in discrimination prohibit to States Member EU in legislation requires 2000) Law for Individuals and Family, art. Family, and Individuals for Law 2 7, November of 2000/78/EC Directive (Council occupation and employment in treatment The European Employment Framework Directive establishing a general framework for equal Restrictions are placed on nearly all of the financial transactions of persons , art. art. , art. , art. , 7 (2). (2). 1 Significantand automatic deprivations ofthe right to property exist for 3 4 3 5 , , . . 5 . 1 1 95 right to property. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By 9 1 1 94 In all other cases a person under guardianship can perform The right to property includesthe ability of individuals 1 1 93 of Protocol No. Adults under partial guardianship have the rightguardianshipthehave underpartialAdults 1 92 4 Law prohibits adults under guardianship from . 1 90 Such restrictions are also contrary also restrictionsare Such 1 to the European Convention on human rights and guardianship in bulgaria 49 - - Therefore, persons persons Therefore, 99 1 989. 1 .02. 1 ). 4 8/2 ( 5 3 , Principle (2) ‘Marrying cannot be contracted by a person who has The Council of Europe returned to this theme in its its in to this theme returned Europe of Council The 4 1 96 1 , para 0. 13 family life. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercisethe right to marry, to found a family, and to respect of 5 If a child of an adult under plenary guardianship is put up for for up is put guardianship plenary under an of adult If a child 200 97 6 1 Significant and automatic deprivations of the right to marry, to found found to tomarry, right of the deprivations automatic and Significant They are also prohibited from fostering children, and may be restricted restricted be may and children, fostering from prohibited also are They 98 1 People under plenary guardianship are categorically prohibited from Family Code, art. Family Code, art. Supreme Court of Cassation, Decision N Recommendation No. R(99) Councilof Europe, ActionPlan to promote the rights and full participation of people with been placed under full judicial disability or suffers fromconstituting a grounds formental his/her placementdisease under full orjudicial disability.’imbecility disabilities in society: improving the quality of life of people with disabilities2006-2015, Recommendationin Europe (2006)5, para. 3.12.3(viii).
principles of international law.’ international of principles possessions. possessions. No one shall be deprived of his possessions except in the public interest and subject to the for provided by conditions law and by the general ‘Every ‘Every natural or legal person is entitled to the peaceful enjoyment of his 7 99 96 9 98 1 200 1 1 1 Indicator 1 Indicator under partial guardianship as legally incapable and, therefore, they may be eligible and, therefore, as partial under guardianship incapable legally children. adopt to as one who is ‘legally able and not deprived of parental rights.’ parental of deprived not and able is ‘legally who as one not and allowed are in this definition included are not guardianship plenary under Court does not regard people the Bulgarian Supreme However, children. to adopt Analysis: parent marrying. adoptive eligible an defines Code Family The children. own their raising from a family, and to respect of his/her family life exist for people under both partial and and partial both under people for exist life family his/her of respect to and family, a guardianship. plenary Conclusion: and inherit property, providing legal protection to assets manage on their an equal legal protection providing property, and inherit others’. to basis 2006 ‘Action Plan to promote the rights and full participation of people with disabili with people of participation full and rights the promote to Plan ‘Action 2006 These States. Member by taken be to measures own concrete to listed which disabilities with society,’ in ties persons of right equal the ensure ‘to action included measures ‘[w]henever possible the adult should be enabled to enter into legally effective transac effective legally into enter Recommendation to No. enabled be R(99)4 should adult follows the this possible sentiment ‘[w]henever by recommending that nature’. an of everyday tions
Human Rights, which reads, in relevant part: relevant in reads, which Rights, Human 50 mental disability advocacy center parenthood’, relationships, sexual disabilities to respect and marriage persons with withagainst should promote their right to personalshould promoteintegrity participationthefull and ofpersonsensure withdisabilities thatfamily inlife. lawsThey dopeopleof notwithdisabilities discriminatefamilytolifepersonaland integrity, affirming that ‘States ofOpportunities forPersons withDisabilities contains strong language ontherights alsoaddressedhas thisissue.Standard oftheUNRule 9 Rules ontheEqualization family,a according tothe national laws governing theexercise ofthis right.’ whichTheUN reads, ‘[m]en and women of marriageableobligations agetorespect person’shavea the rightright tomarryandfound to family a under marry Articleand found obligationrespecttoperson’s a private familyandlife.There are similar Convention This imposes on States a negative obligation not to interfere with,guarantees as wellthe asright positivea torespect for private andfamily life, home andcorrespondence. Human Rights Standards: basis of parental capacity alone. prohibitedwithin thelaw, then theparent-child relationship notis restricted onthe court in this case was that since marriage by adults under partial guardianshipexercisingrights.’parentalandchildren istheir not of care taking in SupremeheldCourthasthat‘persons underguardianshippartial not are restricted whohave beenincapacitated but fortheir children under theofage Theguardianship authority hasthe authority to appointadoption, aguardian that parent’snot only consent for is not adults required only that of the guardian is needed. and cooperatives. associationprohibitingby founding joiningfromthemornon-profit organisations Analysis: people under both partial and plenary guardianship. Conclusion: to experience their sexuality, have sexual relationships and experience parenthood’. Indicator Indicator 20 20 20 202 20 5 4 3 1
Ibid A/RES/ Disabilities, with Persons for Opportunities of Equalization the on Rules Standard UN Assembly, General UN January 200 January 1 on force into entered 2000, October 6 81, SG 22. art. Organisations, Non-Profit for Law N Decision Cassation, of Court Supreme art. Code, Family a poiis dls ne gadasi fo eecsn fedm of freedom exercising from guardianship under adults prohibits Law , Rule 9(2). 9(2). Rule , 203 1 Significantand automatic deprivations ofthe right toassociate exist for 7 and that ‘[p]ersons with disabilities must not be denied the opportunity 1 205 .
54 right to associate. to the right exercise to opportunity the of deprived automatically not is adult an guardianship, under placed being By , para para , Article 8 of the European Convention on Human Rights 4 . 5 4 8/2 8/96, dated March March dated 8/96, 1 .02. 1 989. 4 , , 1 996, Rule 9. Rule 996, 202 The logic of the of logic The 1 8 as well.as 8The 204 1 20 2, 1
human rights and guardianship in bulgaria 51 11 . 33 998) EHRR 6 EHRR 998) 1 8-25 8-25 address these 1 998, ( 998, 1 Thus, even an adult under under adult an even Thus, 0 July July 0 207 1 (2), such as for the protection of health health of protection the for as such (2), , judgment judgment , It is difficult even to imagine a scenario scenario a imagine to even difficult is It 5 decisions for the adult, while in while the for partial adult, decisions 11
/9 206 5 all Thetoright canfor associate be important especially , Application No. 2669 No. Application , 22, para. 2. A person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. 1 8 Bulgaria’s legislation does guardianship under not that ensure people legislation Bulgaria’s 1 Bulgarian legislation allows for only two types of guardianship that cannot cannot that guardianship of types two only for allows legislation Bulgarian ’ is the right to form associations. form to right the is ’ (Indicators 18-25) Obligations of the Guardian After Guardianship Is Established 11 Family Code, art. Sidiropoulos v. Greece v. Sidiropoulos
7 206 20 Indicator decisions, the guardian of the person under partial guardianship has the authority to to authority the has guardianship partial under person the of guardian the decisions, consent. of withholding or provision the through decide guardianship cases, the guardian guardianship makes own his/her on to make decisions authority has some cases, the adult guardianship other all In nature. everyday an of decisions basic very of case the in only but behalf, be further tailored according to the needs of the person under guardianship. In plenary plenary In guardianship. under person the Analysis: of needs the to according tailored further be Conclusion: Conclusion: capacity. functional have they where areas in decisions make to right the have the the State needs to establish supervision workable systems and to accountability review of guardians. of the responsibilities guardians. responsibilities, Indicators In In order to ensure that self-determination, an and adult under guardianshipindependence maximize is to treated opportunity with dignity the hasand and respect, 2.6.5 ‘necessary in a democratic society.’ A blanket ban on doing so almost certainly violates violates certainly almost so doing be would to guardianship associate in the on under of rights which restricting people ban blanket A society.’ democratic a in ‘necessary law. rights human international binding or morals or for the protection of the rights and freedoms of others. The European European The of others. and freedoms of the rights in forth the protection or for set or morals right the of part inherent ‘an that confirmed has Rights Human of Court Article restrictions on these rights must be clearly stated in law and necessary in a democratic democratic a in necessary the right Any to and form and of to his law trade join for unions the interests.’ in protection stated clearly be must rights these on restrictions Article in grounds listed the of one for society of the European Convention on Human Rights, which states: ‘Everyone has the right right the has ‘Everyone states: which Rights, Human on Convention European the including of others, with association of freedom to and assembly peaceful of freedom to people with disabilities, as membership in advocacy and peer support groups can foster foster can groups support peer and advocacy in membership as particular disabilities, in with associations people Advocacy autonomy. and empowerment development, skills A protection. legislative for to lobby voice political a collective individuals give may Article engages aim common a pursue to others with associating from prohibition Human Human Rights Standards: 52 mental disability advocacy center for a preservationmaximum of capacity: continuingpowers’.with one specific to act limitedwithout are requiringthe which appointment those include of should protection a representative of measuresor a of representative range self- maximises Recommendation No. R(99)4. approach For example, permeate the document which recommends rightsthat ‘[t]he This human of principles autonomy, guardianship. basic and determination to approach least-restrictive a Standards: Rights Human since the guardian can always veto any decisions that the adult wants to make. partialguardianship isprecluded from makinganydecisions onhis/her ownbehalf ‘Guardian’s Duties,’ the model legislation suggests: guidanceon how to incorporate this principle into legislation. In the section entitled participation – is found in the Uniform Guardianship Act of the US, whichmaking providesof which the adult will retain. medicalexpertmustconsultedbe whenjudgethe assessesdecision- the thosetasks adultundertaketransactionsmayindependentlistmayan that A guardian. theof successfully legislation where judge the France, France, in guardianship establishing principle. from Whenincorporates this be could example best-practice A 209 208 transactions of an everyday nature. effective legally into enter to enabled be should adult possible theWhenever the representative’s consent, to undertake specific when acts or even acts whereby, in representationa arrangementsspecific area. in legalaparticular area is necessary, tothe adult may be givenpermitted, with be shouldConsideration character at any time when his or her capacity permits him or her to interventiondoanyto so. healththefield,in make otherto or decisions personal a of concernedof the right to vote, or to make awill, or to consent or refuse consent In particular, a measure of protection should not automatically deprive the person where it is shown to be necessary for the protection of the personremoval concerned. of legal capacity. However, a restrictionAccordingly, of a legalmeasure capacity of shouldprotection be shouldpossible not degreesresultof incapacity different automaticallymay that exist and that incapacity recognise possible, inmay varyfrom as atime to completetime. far so should, framework legislative The
service of the French Government. Available at: at: Available Government. French the of service French Civil Code, op. cit, art. 501. Unofficial translation provided by Legifrance, a Legifrance, by provided translation Unofficial 501. art. cit, op. Code, Civil French R(99) No. Recommendation May 200 May 7 ). ). 208 Principle 3 recommends that legislation should allowlegislation shouldrecommendsthat Principle 3 As noted, international human rights law demands law rights human internationalnoted, As 4 , Principle 2( Principle , 209 Another approach – encouraging the adult’s 5 ). www.legifrance.gouv.fr (last accessed accessed (last 1 human rights and guardianship in bulgaria 53
0 1 2 (a). 313 , para. 3 ) entitled Hearing the 1 ), art. ( 7 8, para.2. 43 4 99 1 2/99, Section 44 It is important for legislation to expressly give the adult adult the give expressly to legislation for important is It . This provision is not cited as a ‘best practice’ example because 7 An adult subject to guardianship must be consulted about major decisions, and have his/her wishes adheredto whenever possible. , 200 1 Not only is the consent of the person under guardianship not required required not guardianship under person the of consent the is only Not 9 11 There is no legal requirement for guardians to consult the adult subject subject adult the consult to guardians for requirement legal no is There 1 2 Once an individual has been found to lack capacity, the adult is excluded excluded is adult the capacity, lack to found been has an individual Once Recommendation No. R(99)4 thatspecifies ‘the when taking R(99)4 aNo. decision, Recommendation 2 1 2 See Uniform Guardianship and Protective ProceedingsAct ( See The Finnish Guardianship Services Act, from the ward’s point of view and if the hearinginconvenience.’ can Unofficialbe arranged translationwithout considerable provided byGovernment.Available at: http://www.finlex.fi/en/laki/kaannokset/1999/en19990442.pdf, FINLEX, a service of thevisited on FinnishMay the Finnish legislation unfortunately contains a broad list of derogations. Ward whichreads, ‘Before Ward guardianthe decisionmakesmattera afalling in withinhis/her task, he/she shall inquire the opinion of the ward, if the matter is to be deemed important Law for Medicines and Pharmacies in Humane Medicine, art.
In this paradigm, the guardian is responsible for ensuring the adult’s participation participation adult’s the ensuring for responsible is guardian the paradigm, this In possible.’ whenever act to opportunity and and, to the extent possible, shall encourage the ward to participate in decisions, act act decisions, in participate to ward the encourage shall ward’s the possible, manage extent to the capacity to the and, regain or develop and behalf, own ward’s the on affairs.personal A guardian,in shall themaking expressed consider decisions, to the guardian. known to extent the the ward of values and personal desires ‘A guardian shall exercise authority only as necessitated by the ward’s limitations limitations ward’s the by necessitated as only authority exercise shall guardian ‘A 0 2 1 11 1 2 2 2 Indicator duties. performance and a judicially enforceable standard. A good practice example would would example practice A good standard. enforceable a and judicially performance guardians that requiring by principle this guardian’s incorporates the of legislation whose scope Finland, the be within decisions with connection in opinion adult’s an ask Human Rights Standards: Standards: Rights Human guardian’s the evaluate to benchmark a both provides it as decision-making in role a not required. not for the medical decisions, treatment guardian need not inform the made. person under been has it after decision the of guardianship any decision. For example, one such area is in clinical trials for medications. While the the While medications. for trials clinical in is area such one example, For decision. any may individual the before required is guardianship partial under person a of consent is guardianship plenary under a person of consent the trials, clinical to subjected be what the adult’s wishes are. There are no provisions, with limited exceptions in medical medical in determine to obliged exceptions are not they interests, limited with adult’s the promote that provisions, make decisions no are There are. wishes takes guardian adult’s a the before what consent adult’s the obtaining for provide that cases, treatment Analysis: to are guardians required Although follow. that processes all from decision-making Conclusion: Conclusion: decisions. any regarding guardianship to
54 mental disability advocacy center reserved for the adult under guardianship, so the legislation could be interpretedbe legislationcould the so guardianship, underadult the for reserved persons. underorhis guardianship, her manage property, andrepresent theperson to third Analysis: limited to the areas where the person concerned needs assistance. Conclusion: than one representative’. jointly with the adult concerned, and of measures involving the shouldappointment be given to the inclusionof more of individual’s ‘[c]onsideration measurescircumstances, underan which solution theto appointed best the personfind acts to trying view’. concerningany major decision affecting him or her, thatso he or she may express a or her adequate information, whenever this is possible and appropriate, in particular suggeststhat‘a person representing orincapableassisting an adult should givehim possible,shouldand intotakenbe account givenand duerespect’. last various situations’. toenable suitablea legalresponse madetobetodifferent degrees incapacityof and and economic interests of incapable adults should be sufficient, protectionin scope other of andor arrangementslegal flexibility, ‘[t]he measures available that forprotectionthe noting approach, flexible personalofthe a take to countriesencourages obligationslightparticulartheofinadult’s capacity. Recommendation No.R(99)4 authoritythe determining capacityindividual the definescopethe toguardian’sof Standards:Rights Human and with whom the person socialize. will minor decisions, such as what leisure activities the person concerned engagewill in health conditions, and employed. Theguardian also hasthe authoritymental or medicalto fortreated makeeducated, institutionalised, be more will adult thewhere authority to make major decisions of a highly personal nature, such as whether and has the guardian cases the guardianship decisions.financial all that in This means personaldecisions, all including make toand authorising medical as guardian the Indicator 20 Indicator 2 2 2 2 2 17 1 15 14 13 6 and present wishes and feelings of the adult should be ascertained so far as as far so ascertained be should adult the of feelings and wishes present and
2 1 Principle 2( Principle art. Code, Family 2(6). Principle 9( Principle 9( Principle 4 Principle 2 of the Recommendation goes further, recommending that when 2 1 6 eilto poie ta te urin ut ae ae f h person the of care take must guardian the that provides Legislation There is no list of rights or decision-making areas that are expressly are that areas or decision-making rights of list no is There The scopeand authority ofthe guardian isall-encompassing ratherthan 1 3 1 ). ). ). 2 1 7 The Recommendationfurther advisesthat: 117 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 2 (2). 1 5
Domesticlegislation shouldprovide directionclear to 2 1 3 This This principle human rights and guardianship in bulgaria 55 - - 8 1 2 1 22 ). 3 consent to marriage or adoption, or to or marriage adoption, consent 220 2/99, para. 8( 44 The guardian need not seek approval from from approval seek not need guardian The 222 While this of order return the is legislation appealable, ) 1 223 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 20( 1 . ). 1 ( 34 20(2). 1 3 1 Even within a particular matter, the Finnish legislation safeguards the the safeguards legislation Finnish the matter, a particular within Even A guardian need not promote independence A or guardian to need independence seek not promote community- 9 2/99, para. 29. 1 2 44 , para. , , art. In Bulgaria, a guardian has to the the where determine authority adult The Finnish Guardianship ServicesAct, Family Code, art Principle Ibid Ibid Ibid
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 be to shown is it where ‘The legislative framework should, so far as recognise possible, that different 8 9 1 3 1 1 220 22 222 22 2 2 Indicator 2 mined mined by the guardian. ternative. In fact, the Family Code provides that if the place of residence is changed changed is residence of place the if that provides Code Family the fact, In ternative. of the then the guardian, guardian the an from may obtain consent order without the district court for the return of the person to the place of as residence deter The guardian has the absolute power to select the adult’s place of residence. There There placeofThe residence. to guardian haspower select the adult’s theabsolute al living restrictive least the select must guardian the that in law requirement is no in the legislation as to what constitutes a ‘good reason’ for the person to live elsewhere, elsewhere, live to person the for reason’ ‘good a constitutes what to as legislation the in settings. in institutionalized including decision. a such at arriving in body other any or authority guardianship the will live. There is no provision in the legislation that dictates an appropriate basis for for basis appropriate an dictates that legislation the in provision no is There live. will indication no that, unless states good reason is It the merely guardian to make There this determination. guardian. his/her with live should adult the otherwise, requires based or less restrictive living arrangements. arrangements. living restrictive less or based Analysis: Conclusion: Conclusion: including conveying or purchasing court. property, the or purchasing of conveying including permission specific absent will, a revoke or make that ‘the task of the guardian may be restricted to cover only a given transaction, matter, matter, transaction, given a only cover to restricted be may guardian the of task ‘the that property’. or activities of a from specified guardians number of by the prohibiting adult interests A best practice example of this approach is the Finnish Guardianship Act, which specifies specifies which Act, Guardianship Finnish the is approach this of example practice best A
56 mental disability advocacy center in draft Article adopted by the UN General Assembly as this report went to print, sets out this right NationsbePersons ConventiontoDisabilities,ofwithset Rights the iswhich on United international The law. in recognised is and country every in importance and therefore to have a life free from social exclusion and discrimination,betweenguardianshipinstitutionalisation. and is of utmost community,the rightThe live in to Standards: Rights Human guardianship. plenary under people exclude prosecutor, would thebut and ity samethe‘interested parties’ eligible appealtodecisions guardianshipofthe author limited to be may right appeal The appeal.toright the has whospecifynot does andalternative housing models, which enable amove from institution-based provision community-basedcare ensureto service countries ‘to quality on calling decade European-wideanextout frameworkdisabilitythepolicysetsforActiononPlan in which he or she lives’. person has ‘the right to be treated and cared for, as far as possible, in the communityshall have the right to live and work, to the extent possible, in the community’. The 22 226 22 22 7 5 4 1
community, including by ensuring that: inclusionparticipationfull andtheirthe andrightin disabilities thiswith of effective takeand appropriate measuresfacilitate to enjoymentfull personsby shall others,and community,tochoices equalthewith in livedisabilities to StatesConventionPartiesthisto personsrecogniserightallwithequal ofthe Article 19 – Living Independently and Being Included in the Community 99 Ibid with 2006. Persons York,New August 14-25 of session, Eighth Dignity Disabilities, and Rights the of Promotion and Protection the on Convention equal basis to persons with disabilities and are responsive to their needs. Community services and facilities for the general populationfrom theare community.available on an living and inclusion in the community, and to prevent isolation or segregationcommunity support services, including personal assistance necessaryPersons to supportwith disabilities have access to a range of in-home,obliged to liveresidential in a particular and living other arrangement. and where and with whom they live on an equal basis with others and are not Persons with disabilities have the opportunity to choose their place of residence Improvement of Mental Health Care, adopted by the General Assembly on December December on Assembly General the by adopted Care, Health Mental of Improvement 1 International Resolution Integral UN and Comprehensive a on Committee Hoc Ad the of Report arts. Code, Family 99 1 UN Mental Illness Principles provide that ‘[e]very person with a mental illness 1 , Principle Principle , , Principle Principle , 1 9 the following: 7 4 , Role of community and culture. and community of Role , , Life in the community. the in Life , 4 6/ 115 227 11 and and 9 on the Protection of Persons with Mental Illness and the the and Illness Mental with Persons of Protection the on 9 In addition to this, the 2006 Council of Europe Disability 1 20. This indicator tests the often-intimate connection often-intimate the tests indicator This 226 225 Each 17
, 224 - human rights and guardianship in bulgaria 57
- 233 234 The The 1 23 9). 11 st meeting of the 1 In cases of urgent urgent In cases of 230 , 2006 at the 96 5 232
235
229 (vi). 3 .8. of the Council of Europe to member States on the Council of 3 5 ). ) 1 1 ( 8( The guardian must manage the assets of the adult in mannera that benefits the adult under guardianship. 11 Although living arrangements are not expressly addressed in addressed are not expressly living arrangements Although 114 228 . (2). 8(2). 117 73 11 The law fails to ensure that the guardian manages the assets of the adult adult the of assets the manages guardian the that ensure to fails law The , art. , art. , art. The guardianship authority must take an inventory of the adult’s property property adult’s the of inventory an take must authority guardianship The The amount of interest owed is one percent per month. (Family Code, art. Family Code, art. Recommendation R(2006) Principle 6(2). Family Code, art Ibid Ibid Ibid EuropeAction Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in (adoptedEurope 2006-2015by the Committee of Ministers on April Ministers’ Deputies), para.
2 0 3 33 34 35 3 31 2 2 2 2 229 2 2 228 Indicator 22 bank accounts. When applying to the court for permission, the guardian is obliged to to obliged is guardian the permission, for court the to applying When accounts. bank board. guardianship the of opinion the attach Further, the law provides that in order to obtain court permission, the action with the action to that court permission, in obtain order the law provides Further, adult. the to benefit clear a of or necessity a either be must property the to respect adult’s from funds of withdrawal the for is required court district the of Permission When administering property of a person under guardianship certain actions regard actions certain court. guardianship district under the person a of of property permission the administering When require transfer, or sale its as such estate, real ing account for that adult. Failure by the guardian to make a timely deposit of such sums sums such a to into of the bank adult belonging any money guardian is to deposit deposit also required timely a make to guardian the by Failure adult. that for account interest. pay to having guardian the in result may Within Within one month of being appointed, the list. guardian is inventory the guardianship to required authority of to added be any notify may property it the of that so value considerable guardianship acquired the after of the establishment need the guardianship authority may appoint a temporary guardian to conduct the conduct to guardian a temporary appoint may authority guardianship the need assets. the manage and inventory in the period between a court’s finding that an adult lacks legal capacity, either partial either capacity, legal Analysis: lacks adult an that finding court’s a between period the in person. that for a guardian of appointment the and plenary, or Conclusion: Conclusion: alone. person that of benefit the for guardianship under decisions, a course should be adopted that least restricts the adult’s rights and freedom freedom and that, dictates in rights all of proportionality the principle No. R(99)4, adult’s the Recommendation restricts least that adopted be should course a decisions, protection. adequate providing while community living’. community 58 mental disability advocacy center under Indicatorunder guardians fail to perform their duties would strengthen legislation’. the adult. The World Health Organization is ofthe benefit viewdirectlynotthat doexpenditures orthatguardianship,‘[s]pecifyingincludingarguably acts penalties if under adult an of property or funds misappropriation mismanagement the or of theirfunctions’. held liable for ‘any loss or damage caused by them to secureincapablehisorher welfare’. adults while exercising of the incapable adult should be managed and used for the benefit ofan adultHumanStandards:Rightsand to assets independent of the guardian. noprovision in the law to ensure that the person can have or spend any of his or her possibilityofexploitation oftheadult’s the openleavesspent beshould assets by theguardian. assets Additionally, thehow for standards there any is of lack thebut the adult under guardianship. This provides minimal protection forthe board. adult’sHowever, assets, even these in situations there noisrequirement ofconsulting with with the permission of the district court supported by pertainingthetoproperty opinionandasset management beperformedcanof thebyguardiana only guardianship Someactsguardian. a byoutcarried be may lawsBulgarianregulated by acts All biain ht ol b ams ipsil wtot aet-ae etns yet meetings,Bulgarian face-to-face legislation without impossible does not almostrequire even beperiodic visits would from guardians. that obligation there is no requirement that the guardian visit the person concerned. However, when the guardian and the person under guardianship guardiandois well notpositioned live totogether, be aware of the adult’s condition, needs and desires. ‘importantreasons’differentrequire a placement. Arguably, situations,such in the Analysis: before making any decision. Conclusion: Indicator 23 Indicator 2 2 2 2 2 4 3 3 37 3 0 9 8 6
adults. adults. Geneva, Organization, Health (World Care to 200 Switzerland, Dare Exclusion, Stop Legislation: and MDAC’s stage two guardianship reports will address whether guardians routinely visits visits routinely guardians whether address will reports guardianship two stage MDAC’s Art Code, Family Rights Human Health, Mental on Book Resource WHO Organization, Health World 20( Principle 8( Principle ugra lw eurs ht h aut eie ih h gada unless guardian the with reside adult the that requires law Bulgarian There is no requirementthat the guardian visit or consult withthe adult 237 3 1 1 ). 7 , the guardian is expected to look after the adult’stheinterests, after lookan toexpected is guardian7, the This principleshould This guardian liableheld be for a that suggests ). 5 1 ), p. p. ), 20( adult periodically. adult the with confer and visit to obliged is guardian The 236 1 43 ) Principle 20further provides thatguardianashould be . RecommendationNo. R(99)4 states that‘the property 238 240 As discussed 239
human rights and guardianship in bulgaria 59 (b)(i). 313 ), para, 7 99 1 Another important benefit of requiring requiring of benefit important Another 1 24 A cornerstone of Recommendation No. R(99)4, and No. R(99)4, of A Recommendation cornerstone 242 26. all decisions. A guardian’s decisions are periodically reviewed by anobjective body and the guardian is held accountable for 1 Guardians are expected to provide annual activity reports. However, Guardians are annual to expected However, activity reports. provide The guardian must present a report whenever the guardianship authority authority guardianship the whenever report a present must guardian The The guardian of a person placed under plenary guardianship must present present must guardianship plenary under placed aof person guardian The 243 See Principle 9. The Uniform Guardianship and Protective ProceedingsAct ( Family Code, art.
2 41 4 43 2 2 2 Indicator 24 under no obligation to share the contents of the report with the adult or even to inform inform to even or adult the with report the of contents the share to obligation no under accounted for, or were lost due to poor decision-making on the part of the guardian. guardian. the of part the on decision-making poor to due lost were or for, accounted Thereports is Theare authority keptby guardianship theauthority. guardianship unaccounted for, the guardianship authority can recoup the funds. There is no provision provision no is There or if are funds funds. information the additional to recoup submit the guardian can require it may report, authority guardianship been the have may for, they though even unaccounted misspent, were that funds of return the or recoup for does not require reporting on any specific issues the content of the report is not legally legally not is report the of content the issues specific any on reporting require not does the with by ofbeingthe accepted reports unsatisfied cursory is openThisthe leaves possibility regulated. authority guardianship the if However, authority. guardianship an annual report on activity to the guardianship board and municipal guardianship guardianship and municipal board to the guardianship on activity an report annual legislation the As guardian. a being stops authority. she or he if so do to obliged is and requires so that guardians are sufficiently accountable for their decisions. their for accountable sufficiently are guardians that Analysis: Conclusion: Conclusion: ensure to fails also Legislation reports. such of content the specify to fails legislation remain personally acquainted with the [adult] and maintain sufficient contact with contact sufficient maintain and [adult] the with acquainted personally remain and opportunities, needs, limitations, capacities, [adult’s] the of know to [adult] the health’. mental and physical A A best practice example is the Protective Proceedings Act, model which provides legislation that the Uniform guardian Guardianship must ‘become and or guardians to visit adults they represent is that they may gain a full understanding of of full understanding a gain may they that is represent they adults with links visit to This guardians provided. services and care the as well as conditions, living adults’ living. the independent maximising on duty guardian’s the on above indicator the No. R(99)4 importantly places an obligation on the the an places guardian adult to obligation provide importantly R(99)4 No. position a in adult the put to decisions major concerning information sufficient with issue. the on view an informed express to person-centred protective systems generally, is the need to ensure that the adult remains remains adult the that ensure to need the is generally, systems protective person-centred into wishes to take the In adult’s order process. the decision-making within central Recommendation adult. the with consult must guardian the that follows it account, Human Human Rights Standards: 60 mental disability advocacy center Finally, for all people under the guardianship of their spouse or their parents, therecircumstances isever noactually come to light is questionable. for periodic review of the guardian’s activity other preventthan annual the reviewguardian fromso taking whethercertain actions. such guardianshipguardianshipauthorityboard,thetheadvicefrom may taking After activities,AdministrativeforthecoveredLaw aretheOffences by and Penalties. guardian, such as fines, reproach, deprivation of right to perform purpose. certain professionalits However, the fine is maximum executivecommittee of thedistrict council, may lead tofinea against the guardian. statementissuesa guardiansthewhich,againstapproved if chairmantheofby authority guardianship the report, a present to fails requested orauthority when by the guardianship authority. guardian to repay any expenditures either not properly accountedguardianship forauthority or notrequests approvedit, guardian’s removal. the district court the canissue require an order requiring may the it irregularities finds thereport and on explanations made by the guardian. Ifthe guardianship authority The law mandatesthe guardianship authority to informthe guardian of its opinion on of the guardian’s decision-making is therefore lacking. to demand an explanation from the guardian for decisions or theexpenditures. adult thatOversight a report has been submitted. The adult is excluded fromthe opportunity procedural terms in order to comply with monitoring regulations.dutiestheir discussedtermsof(asunderIndicator in expected in is 20),what and this measure, review mechanisms must specify what is expected both from guardians and others involved in the affairs of incapable adults’.liability for wrongful acts, negligence or maltreatment should particular,apply‘theoninlawsadultsthatand, underthetheircare to them by caused to representatives shouldheldaccountableguardiansbedamage or loss anyfor actionstheir forand representatives’. of decisions and acts the protectionofofoperation measuresand adequatethe ofcontrol should ofbe Standards: Rights Human reports of their activities, meaning that there is noanalysis oversight under Indicatorof any family guardians. guardianship board established and no case opened with the guardianship authority (see 2 2 2 2 2 2 2 5 4 4 47 4 45 44 0 9 8 6
Ibid Ibid Principle 20. Principle Principle art. Code, Family art. Code, Family cents), Euro 10 (approximately Leva 0.20 to up only be may and small is fine The art. Code, Family , art art , art. , 246 1 1 n frhr icpiay esrs ht a b tkn gis the against taken be may that measures disciplinary further Any 1 2 1 26( 6. 5 26( . 4 5 ). ). 1 1 26(6). 26( 1 0). There is no requirement for these family guardians to file 3 ). 245 Recommendation No. R(99)4 specifies that ‘[t]here that specifies R(99)4Recommendation No. 1 If the guardian fails to appear before the guardianship 0 Euro cents, a fine so smallas to bring into question 249 The Recommendation also specifies that specifies Recommendation also The 248 However, there is no mechanism 250 To meaningfully comply with 244 diinly i the Additionally, if 247
human rights and guardianship in bulgaria 61 . - 75
253 There are no legislative legislative no are There 1 25 2, only people under partial partial under people only 2, 1 ). 5 http://www.who.int/entity/mental_health/media/en/ (Bender 200 . 5 7 254 2 1
Limitation or deprivation of legal capacity should not of should legal capacity or deprivation Limitation 252 .26. ). 13 1 May 200 1 A complaint procedure exists that triggers review guardian’sof acts or omissions. 26( 1 . 115 The law does not provide for a complaint mechanism to trigger review review trigger to mechanism acomplaint for provide not does law The , art. The law does not provide for a process complaint that would trigger , last accessed on Mental Health Care Law: Ten BasicPrinciples, MentalWHO/MNG/MND/96.9.HealthTen CareLaw:Health Or World See, e.g.,Alaska Stat. § Family Code, art. Ibid ganization, Geneva. Available at: pdf Necessity of Guardianship and Alternatives (Indicators 26-29)
2 53 54 51 5 2 2 2 2 Indicator 25 used only as a last resort. Legislation that is compliant with international human rights rights human international with compliant is that Legislation resort. last mental a with as individuals only to used protection give that alternatives for provides usually norms The last group of 26 indicators (Indicators to 29) examines be legal should guardianship to nature, and alternatives personal of Because its intrusive guardianship. or to terminate the guardianship. the terminate to or 2.6.6 A best practice example can be found in a United States statute, which provides that that provides which statute, States United a in found be can example practice best A guardian, a by made successor, decision a a amend and review to appoint court the and request guardian may a adult an remove to responsibilities, guardian’s the review to the review, according the to according person. review, the in to WHO accessibility the heard timeliness, are be to availability, adult the for opportunity an and concerned individual No. R(99)4 does not directly address this point, but the World Health Organization Organization Health World the but point, this address directly not does R(99)4 No. has for listed the as of review of availability procedures decisions a one guardian’s of The components law. health of mental ten principles basic of the recommended exclude exclude an adult from legal a access have which to bodies are courts, or there authorities mechanisms that to complaints imperative is It decision. guardian’s a review Recommendation Regrettably, to mandate decision. amend or a reverse guardian’s guardianship enjoy this right. this enjoy guardianship Human Rights Standards: provide for a mechanism for the adult under guardianship to file a complaint against against complaint a file to guardianship under adult the for mechanism a for provide court a to appealed be can authority guardianship the of decisions The guardian. the indicator under discussed as but party, interested an by a report from the guardian at any time and for any reason. any for and time any at guardian the from report a to or made complaints investigate to authority guardianship the not requiring does law provisions The receive. may it complaints to respect with action particular any take reviewing a guardian’s activities. The guardianship authority is empowered to require require to Analysis: empowered is authority guardianship The activities. guardian’s a reviewing Conclusion: Conclusion: omissions. or acts guardian’s a of 62 mental disability advocacy center individuals who become incapacitated later in their lives. possibleforappointitguardiandirectives,avoidto needmakecould to the athat mechanisms powers-of-attorney no Thereare law,available as in such advanced or limitedcapacity other placementthan under either plenary orguardianship.partial Analysis: means of protection before imposing guardianship. plenary guardianship do not exist in law. There is Conclusion:no requirement to exhaustany other reviewed periodically, and modified or terminatedas required by circumstances. vulnerablepersons.Therefore, guardianship paramount arrangements that is are it extentaccomplishtheprotectionnecessarytotoof and tasklong the as onlyas of capacityoverrecognisenatureofGuardianshipdynamictime.theused should be possible. The last group of indicators reflect the need for guardianship frameworksnature and to preserve the adult’s rights to exercise healthdecision-making problems andto intellectual the disabilities,greatest extentbut these alternatives are less intrusive in support network as an alternative to appointing a substituteFurthermore, decision if themaker. first criterion is not met,network‘reasonableand the courteffortsinvolve have made been to support the may network’. mandate efforts to involve a appointednotmaybe beforedeterminedisit whetherindividualsupport thea has PersonsLiving with a Mental Disability Act specifies that a substitutestandard decisionset out makerin this indicator can be found in Canada. The Manitoba Vulnerablerangements have been exhausted. A best practice example of legislationgests that thatan meetsadult the should not be placed underprinciple guardianship ofunless minimum other necessary less intervention, formal ar or the protectiveleast restrictivemeasure such alternative.legalas incapacity and guardianshipIt sugshould bebased on the Human Rights Standards: Indicator 26 Indicator 2 2 5 55 6
Decisions Act, S.O., ch. ch. 2 ch. S.Y. Act Making Decision and Protection Adult considered.’ carefully or tried been have a guardian unless ‘forms of available support and assistance less intrusive than guardianship is rights’ making decision person’s the to Health unavailable. (Mental para. M.7 , ch. S.O., Act, restrictive ‘less course alternative an unless property adult’s an of care take to guardian a appoint cannot court a Ontario in example, Ibid Vulnerable Persons Living with a Mental Disability Act, R.M., ch. 29, paras. 49(a)-(b) (1993). Bulgarian law does not providenotdoesprotectivelawBulgarianany peoplemeasures for with , ch. 29, para. 1 , Schedule § A, Schedule , Less restrictiveLess alternatives wouldthatpreventor partialneedfor the 50(2). This approach is also followed in other Canadian jurisdictions. For guardianship is imposed. is guardianship a before exhausted demonstrably are and available are guardianship to alternatives restrictive Less 3 2( 30, para. 22(3) (1992)). Similarly, in Yukon, the court cannot appoint 1 ) (Yukon). ) Recommendation No. R(99)4 states in Principle 5 that a and para. and 33.1 990); Substitute (1990); 33.7 256
255 - -
human rights and guardianship in bulgaria 63 - 6 1 . 902 BGB, discussed 1 43
0. 4 260 ), p. 5 , para. 4 A person may be placed under either either under placed be may A person 257
. 258 54 , at 47 BGB. Also, importantly, a caretaker must seek judicial 7 89 A best practice example comes from Germany, where where Germany, from comes example practice A best Principle 6 Principle of No. which R(99)4, Recommendation 1 259 ) ‘Guardianship Models in the Netherlands and Western Europe’, 7 Guardianships are tailored to the individual needs theof person involved and address the varying degreescapacity. of 99 1 902 BGB and 1 There is no opportunity in law to individually tailor either partial or plena or partial either tailor individually to law in opportunity no is There ) Intl J Law and Psychiatry Bulgarian law recognises only two degrees of capacity, which are determined determined are which capacity, of degrees two only recognises law Bulgarian 1 See discussion of indicator 8, above. Explanatory Memorandum to Recommendation R(99) ResourceMentalBookonHealth, HumanRights Legislation:and StopExclusion, Dareto Care Health(World Organization, Geneva, Switzerland, 200 Doron, I. (2002) ‘Elder Guardianship Kaleidoscope – A Comparative Perspective’, authorization for decisions with high risk or of importance. See IntlJLaw Policy and the Family 368, at 378-9. Therelevant sections of the German Civil Code are 20( in Blankman, K. (
8 9 57 5 5 2 2 2 260 Indicator 27 the caretaker to legally represent the individual or to provide additional consent for for consent additional provide to or individual the represent legally to caretaker the both which in system double-competence a as described been has This actions. legal issues. legal in competence have adult the and caretaker the caretaker (Betreuer in German) whose responsibility is limited to those tasks which tasks which those to is limited responsibility whose in German) (Betreuer caretaker the the adult adult maintains cannot all manage Additionally, assistance. for without necessary is it circumstances the under whether determines court the rights; legal guardianship has been largely replaced by ‘care and assistance’ (Betreuung in German) German) in it’. (Betreuung to is subject who assistance’ person and ‘care by replaced largely been has guardianship to be order by out carried a support an individualised include which programmes, Internationally, this standard has been endorsed by the World Health Organization’s Organization’s Health World the by endorsed been has standard this Internationally, on which human advises that health, mental handbook rights and ‘any legislation the of interests the suits best it that ensure to be tailored must order [guardianship] the legal capacity to act and the rights and freedoms of an adult only to the extent to the extent only of an adult to and act freedoms and the rights the legal capacity protection. adequate provide to necessary alternatives have been exhausted and where guardianship is deemed to be necessary, necessary, be to deemed is guardianship where and exhausted been have alternatives and capacity of restrict degree adult’s should the to Guardianship proportional a in manner imposed adult. be should the it of needs specific the meet to tailored be should Human Human Rights Standards: addresses the principle of suggests proportionality, that after all less restrictive abilities and needs of the person concerned. person the of needs and abilities the within opportunity no is there but guardianship, partial or guardianship plenary adult. the of needs to guardianship of type either tailor to law by the severity of the diagnosed mental condition not by a functional assessment of the the of assessment functional a by not Analysis: condition mental diagnosed the of severity the by ry guardianship to address the varying levels of capacity or needs of individual adults. adults. individual of needs or Conclusion: capacity of levels varying the address to guardianship ry 64 mental disability advocacy center reviewed at reasonable intervals prescribed by domestic law’. that, ‘[d]ecisions regarding capacity and the need for a personalstandard isrepresentative also found in the shall United be Nations Mental Illness Principles,exists. stilldeterminereviewedneedperiodically whethertoshouldthebe which require suchguardianshipas should beof limited duration possibleif and, atthe very least, Standards:Rights Human support restoration of the capacity of the adult. guardianship, it persists for his or her lifetime unless a specific application is madeaddress to whether guardianship needs to be continued. Once a person is placed under reportsunregulatedinsufficientlyperiodiccontentthesereportstheisthesince of onceitestablished.is Some periodic reporting requiredis ofsome guardians, guardianship duration of the limitation on no guardianship. is There necessityof Analysis: partial guardianship is ever reviewed. Conclusion: whereas adults under plenary guardianship may request an application for forrevocation revocation of the guardianship themselves or with the consent of the guardian, improved. applicationhasan file allowedguardianshipAdultsundertoarepartial guardianship requires demonstrable medical evidence that the person’sAnalysis: mental health filethe request ontheir behalf but have no right tofile the applicationof guardianship. themselves. Adults under plenary guardianship may only requestConclusion: someone else to Indicator 28 Indicator Indicator 29 Indicator 26 26 26 262 26 5 4 3 1
Improvement of Mental Health Care, adopted by the General Assembly on December December on Assembly General the by adopted Care, Health Mental of Improvement Supreme Court of Cassation, Decree Decree Cassation, of Court Supreme 1 Resolution UN R(99) No. Recommendation 2 indicator See above. 20, indicator See 99 1 Bulgarian law does not contain any provisioncontainnotanydoeslaw Bulgarianperiodicthe for ofreview ne n niiul s lcd ne gadasi, eoain f the of revocation guardianship, under placed is individual an Once , Principle Principle , Adults under partial guardianship have the right to request termination Bulgarian legislation does not ensure that the need for either plenary or 5 1 , above. , (6). (6). 4 6/ guardianship. the of termination and/or modification request to right the has guardianship to subject adult An only as long as appropriate. as long as only continues and reviewed periodically is Guardianship 11 9 on the Protection of Persons with Mental Illness and the the and Illness Mental with Persons of Protection the on 9 RecommendationNo.R(99)4provides measuresthat 4 , Principle Principle , 5 / 7 9/ 14 13 . .02. 262 1 980, para. para. 980,
1 0. 264
263 26 This 17 1 but , 265
human rights and guardianship in bulgaria 65 9, 7 9 1 269 October If the guardian guardian the If 4 266 0. 1 , judgment 2 However, if the prosecutor However, 73 267 / 1 0 3 980, para. 1 .02. 13 9/ 7 / and 2. 5 1 Application No. 6 , para. 77 The right to fair trial in of determination civil (and . 7 8 3 , Application No. 31534/96, judgment 5 July 1999, (2001) 31 EHRR 32. , 9) 2 EHRR 7 9 The European Court has also found that guardianship engages Article Article engages guardianship that found also has Court European The 1 268 ) ( 33 (A/ Civil Procedure Code, art. 2 Supreme Court of Cassation, Decree Winterwerp v. the Netherlands, Slovakia Matter v.
7 26 268 269 266 8 (privacy rights) of the Convention, asserting that a re-examination of legal incapacity incapacity legal of re-examination a that asserting Convention, the of rights) (privacy 8 requests. so concerned person the if justified particularly is guardianship or someone’s property rights falls within ‘civil rights’ and is thus afforded the protection protection the Theafforded European thus is Court and of rights’ Human ‘civil within Rights falls has rights heldproperty that guardianshipsomeone’s that affects 6. Article of criminal) rights is set out by Article 6 of the European Convention on Human Rights. Rights. Human on Convention Human European Rights the Standards: of 6 Article by out set is rights criminal) and the guardianship authority refuse to file the application, the can adult ask refuse to the file theapplication, and authority the guardianship ofto file theforrevocation guardianship. prosecutor guardianship. plenary under adult the for recourse no is there file, to refuses of guardianship from the guardianship authority or the guardian. the or authority guardianship the from guardianship of 66 mental disability advocacy center but representativebut situation,theoverviewof MDAC’s Bulgaria researcher in based application, through the court hearing and for a period thereafter. To obtainrangeofsources. a broadIthopedwas thatspecific couldcases followedbe fromthe initial broadpossible, arelevantinformation muchfromas as collect toMDACsought Givenavailablethelimitsthein information guardianshiponpractice Bulgaria, in 3 guardianship understanding of practice an in gain Bulgaria. To to was do research this we sought 2 stage to: the objective principal of The 3 MDAC used four methods to collect data on guardianship practice in Bulgaria: statistics on guardianship. domain for free or, at worst, for a minimal payment.principleoninformation requested thethispaypublicto Thustheassum, shouldin be MDAC chose not to obtain possessed relevant form writtenstatistics in but replied Department that thesupplying sought, them was information wouldthis cost €450. MDAC refused RegionalDevelopment about thelists of people who arenot allowed tovote. When theDepartment ofCivil Registration andAdministrative Service atthe Ministry of keptaresuchofpeople.municipalities 264 All Bulgariaobligedareinreport to to lists special and vote to allowed not are guardianship under people because lists, residenceplaceofand peopleofunderfrom election guardianshipBulgariawas in conditionpeopleofunder guardianship. the obtain numbers, to way The ageonly or numbers, status, the government national statistics Bulgarian on The no keeps sought access to a range of courts/authorities. 3 . .1 . Gu . 2 2 7 0 guardianship live. to subject people which conditions under possible, the as far so inDescribe, practice complies with or deviates from the legal framework. Document the process of guardianship so as to examine the extent to which actual
Methodology Aims and and Aims Service Department, Ivan Getov. Ivan Department, Service Review of court case files. Observation of court hearings. Letter 9200 Letter ardia 1 ns 28/6 February 200 February 28/6 O hi bjectives p p Prac 7 t , Chief director of Civil Registration and Administrative Administrative and Registration Civil of director Chief , ic e e i n Bul n garia 270 ht it that human rights and guardianship in bulgaria 67 were hearings second during which 1 5 of the observed hearings the second hearing hearings second the observed the 5 of 1 Review of guardianship files. guardianship of Review Interviews with lawyers, judges, prosecutors, experts, persons to be placed guardians. and guardianship, under Court Hearings 3 . was the last hearing of the case (in most cases there are In two the hearings). rest was that hearing second the case the at on deciding not for cases, reason the the of usually the medical examination was discussed and witnesses were heard. Three of Three heard. were witnesses was and discussed examination usuallymedical the these 25 firsthearings were also thelast hearing. First andsecond (last)hearings 6 cases. in only In monitored were As a result, 56 court hearings from 49 cases were observed in four regional courts. regional in four observed cases were 49 court hearings from 56 As a result, Of these 56 court hearings, 25 were first hearings during which and present interviewed by the the court, and adult 3 was unless specifically requested to, did not explain to the judge at the beginning of the of the beginning at the judge to the explain not did to, requested specifically unless hearings. court the observing of purpose the hearing the judges, varying from indifference to cautiousness. The judges saw the researcher researcher the saw judges The sometimes to cautiousness. note-taking the indifference from varying that judges, the appeared it and hearings the during researcher, the notes written objectivity, take of sake the For nervous. or uncomfortable feel judges made hearings in the case. Thus it was not possible to select cases using this criterion. criterion. this using cases select to possible not was it Thus case. the in hearings from reactions different experienced researcher the hearings, court the observing While researcher would observe was the first in the procedure or whether there had been previous previous been had there whether or procedure the the which in the hearing it by was whether the clear sent courts, not first the replies From the was observe would researcher a a result, Varna, Stara Zagora and RegionalPlovdiv Courts were selected for this research. It was alsoimportant that the senior judges of these courts allowed the hearings. the attend to researcher place in a month or longer, while in others as many as ten hearings may takehearings place may ten asmany as others in while longer, or month a in place in one day. In order to obtain as much information as possible, casesmonitored the in the researcher larger cities, which probably had more court activity. As guardianshipby cases.researcher hearings selected court The the monitored be to their number and In variety. most of the courts, guardianship cases are heard on day one every two or four weeks. In courtssome only two or three hearings take court files and to observe hearings. Some courts agreed to let the researcher observe researcher the let to agreed courts Some hearings. observe to and files court hearings and review the cases – in Lovech (hearingsStara Zagora,only), Plovdiv, and Varna (hearings Allonly). courts provided information about the scheduled regional courts replied. Some regional courtscourts thatSome the replied replied. researcher had declareto the legal basis for observing hearings and reviewing files.access researchers,two accesscourtsto review denied to provide legallyto Since obliged the courts are not To obtain information on the To dates and numbers of scheduled court hearings on guardianship cases, the researcher sent letters in April 2005 and April all 2006 28 regional to courts, which are first-instance courtsfor guardianship cases. All 3 68 mental disability advocacy center officials offered to photocopy some pages of the files so that theresearcher would so that files toof the offered officials photocopy pages some which during promised five moreafter returningthe first five. The review lasted aboutthem.The seventhenresearcher given was five filesat beginning the hours,of the was day, and declarationshewouldanotthatsign todistribute hadcontained personal datain administrationcould prepare the files. Before the researchergiven was thefiles she court the that soplace wouldtake researchrequested whenthenoticeofadvance enough given them.reviewtospace and time was and file) other every then and six first the took she these (of selectrandomly to able was researcher the Only two courts provided access to court files. Inthe StaraZagora Regional Court after the judicial decision comes into force. involvedthe partieshaveopenaccess tofiles. case files The are closed archived and files in 2006. Some courts gave such permission but only forarchived Thefiles, researcher sinceasked only all 28 regional courts for permission to reviewguardianship case 3 second hearing (for more details see Table the donenotuntil conditions), was healthexamination of the because because or either one of the parties was not present (because they were not properly notified or 2 for more details). announcementsof the decision to the person placed under guardianship. (See Table theparties, notes from thehearings, medical examinations, witness statements, and notesandsummarizedthe information, focusing ontheapplication, notification of In total, 24 court case files from 2005 werethoroughly reviewed. The researcher took of the court was not available to discuss the situation. give back the photocopies which she had received the previous day. The senior datajudge protection agreement which was signed the previous day. The researcher had to that the researcher had photocopied some pages, which outhefound heviewed as because a breach access ofrefuse the to administration the instructed judgesenior the but files, the of rest the review to supposed was researcher the day next The notfilehave a writetowerefromdown.court them pages fiveThus photocopied. . 4 2 71
Court Case Files Case Court 2006 – – 2006 200 According to letter 280/ letter to According 5 there were were there 11 were for a review of, and and of, review a for were 1 2 court files were reviewed. During this time two administration two time this During reviewed. were files court 2 3 2 cases regarding placement under guardianship at this court and for for and court this at guardianship under placement regarding cases 2 3 0 January 200 January 0 27 1 In the Plovdivthechairperson Inthe Court,Regional 3 2 were for placement under guardianship’. under placement for were 2 7 from chair of Stara Zagora Regional Court ‘In ‘In Court Regional Zagora Stara of chair from 1 ). 1 2 files from a pile of around 20 files 20 around of pile a from files 2 human rights and guardianship in bulgaria 69 asking about the number the asking number about 273 municipalities with homes for people with intellectual or 37 municipalities. Letters were sent to the 28 municipalities that serve as 4 6 regions) covering a total of 47 regions as of the beginning of April April of beginning the of as regions 47 of total a covering regions) 6 1 about their responsibilities in the guardianship system. In subsequent subsequent In system. guardianship the in responsibilities their about 272 district centres, and to the Ruse, Belogradchik, Goren Chiflik, Shumen, Bregovo, Rila. Bulgaria has 26 psycho-social (mental health) disabilities. The court decision for placement under guardianship. guardianship. under placement for decision court The appointment. the for order mayor’s A appointment. the for certificate A reports. Annual meetings. authority guardianship of Minutes The application by the potential guardian asking to be appointed as such. such. as appointed be to asking guardian potential the by application The Guardianship Files
2 7 73 2 2 5 . impossible (for more details see Table 3 of Annex 3). 3). Annex of 3 Table see details more (for impossible replied to a written request that protection of personal data excluded review of review the data excluded of the personal but that protection to a request beginning, written replied the at rejection no was there cases many In researcher. research made any it by files that so slow or reluctant so was files the show to agreed who officials municipalities were visited, sometimes inthe official only ofchargesometimes municipal were visited, the municipalities they orwhere of them was in who charge one knew no municipalities sometimes wasabsent, files occasions other On files. such no were there sometimes and kept, were The practice of keeping files varies from authority to authority. Unfortunately, MDAC’s MDAC’s Unfortunately, authority. to authority from varies files When keeping reasons. of of variety a practice for The files, guardianship any review to able not was researcher 2007. According to the replies, a guardianship file contain the following documents: documents: following the contain file guardianship a replies, the to According 2007. controlled theguardians’ activities. activities. theguardians’ controlled regions three its with Plovdiv (including municipalities 30 from received were Replies its with Sofia and invited to and participated in the procedure for placement under guardianship, who who guardianship, under placement for procedure the in participated and to invited the about informed were authorities guardianship the agencies how guardians, the guardianship the appointed how and guardianship, under placement on decisions court In January 2007, letters were sent to municipalities 65 sent were letters In 2007, January were (both under the and plenary of they ages partial) people guardianship, of these people, whether institutions, in many how and community the in lived many how be fruitless, as the only thing which it revealed was the almost total lack of knowledge knowledge of lack total almost the was revealed it which thing only the as fruitless, be officials. municipal of part the on and often the researcher had to read the Family Code with them and explain their role role their duties, explain any hadthey that denied theyand first officials these with them conducted with interviews Code Family the read to had researcher the often and to out turned soon way this research the continue To guardianship. of system the in In 2005, MDAC’s researcher requested information from six municipalities (mayors (mayors municipalities six from information requested researcher MDAC’s 2005, In secretaries) and 3 70 mental disability advocacy center two lawyers agreed to talk to MDAC’sto researcher.talksaidjudges, guardians totheagreedlawyers Like two theprocedure were interviewed afterthehearingswhichin theyparticipated. Only participated and present intwo of werethe interviews themwith judges. of The lawyers two representing interviewed, but be adults in to agree notProsecutors did agreed to be interviewed. judgeswho heard the guardianship cases that she observed, but only three of the six deep understanding of guardianship procedures. MDAC’s researcher talkedoverburdened), toareBulgaria(courts timealla inhave notsix thehave did they that and notdidpractice,theirthey issues inthatmany oneonlyof guardianship thatwas professionalshad little interest in discussing guardianship issues. Many of them said The interviews with professionals were notas detailedas originally intended, because health) disabilities during the court procedure. psycho-social (mental intellectual disabilitiesaccommodations or with people for, with other court hearings, and did not demonstrate sensitivityprofessionalsinvolved to,–judges, procedure.prosecutors The northe of andeffects lawyersmake – performed and reasonabletheyaimsas social would the of aware in fully not placedwere people –homes care of guardians and relatives their adults, the especially – after personnel participants guardianshipthe of most that problem main was hearings.The observedcourtshe with interviews out carried researcher MDAC’s 3 and thought she was a person from the past, or could not understand the aim of aimunderstand notcouldtheor past, theperson from a wasthought sheand conversationduringthe didn’tbecause theytalk refusedto researcherortheknow that the adults were not aware of where they were and cities,why. and theOthers short hadconversations hallucinations possible in the limited time and(withadultsschizophrenia relativesspacedementia)broughtotherfrombeenbyor showed had only whichhelponlylanguagesigntheirtheonlyrelativesofwith couldinterpret. Five multiplehaddisabilities. Two simplerepliedadultsquestionsto needsabout their leastAtfive adults were unable because talk to they had never been rehabilitated or thepeople to be placed under guardianship were in a condition allowing interviews. relativesand more than twenty adults who were already under guardianship. Few of guardianship),placedunderguardianship,psychiatrists,beadults tofour two two underplacedbe persontothe ofsideapplicant’s thethe(one on on one andside As a result, interviews were carried out with three judges, two prosecutors, two lawyers The lattertwo were contacted viathe lawyer ofthe adults underguardianship. social care institutions and two were guardians of adults who livedofthem. Thein researcherthe interviewedcommunity. five guardians, of whom three were directors of uncomfortable during the hearings, so the researcher did not seek to interview many clearviewsonguardianship. Most oftherelatives appeared totheresearcher tofeel hearingstheyparticipated in,but only oftwothem were able andhadtofairlytalk the questions after asked were placement guardianship awaiting under adults ten they were overburdened and only two of them agreed to talk to the researcher. About . 6 Interviews human rights and guardianship in bulgaria 71 ypical Court Hearing T Typical Court Hearing for Adult with Intellectual Disabilities
Description of a .7 Very often this courtroom interview and the application were the judge’s only source source only judge’s the were application the and interview courtroom this often Very the decide to assufficient thisofteninformation treated judge The of information. this?’ (pointing at the mother), ‘How old are you?’, and ‘Where do you live?’ The adult adult The live?’ you do ‘Where and you?’, are old ‘How mother), the at (pointing this?’ questions. ‘yes/no’ the to only replied or silent stayed usually the judge that the adult was not able to speak. Then the judge asked the adult’s name name adult’s the asked judge the Then speak. to asked able judge not was The adult the name. that her judge or the his by adult the calling when reaction the examined and is ‘Who from?’, come you did as ‘Where such as questions as well questions ‘yes/no’ After both sides confirmed that the hearing should proceed, the judge turned to the the to turned judge most the In proceed, should hearing courtroom. the that the confirmed in sides was both After everyone why knww adult the to whether explanation asked an and offered adult Parents silent. stayed adults young the observed, cases the of parties present and whether they had been properly notified. Then the judge asked the asked judge the Then notified. properly been had they whether and present parties proceed. should hearing the whether prosecutor and lawyer After After everyone the assembled of in names the the secretary the to courtroom, the dictating case, the judge opened asked officially and people to themselves identify In most cases, parents hired a lawyer to write the application and then to represent to represent and then the application a to write hired lawyer cases, parents In most before adult the to talk lawyer the did rarely Only procedure. court the during them courtroom. the entering arrived at the courtroom. The cases were often delayed, so often the adults became became adults sooften the delayed, often Thewere cases at the courtroom. arrived home. go to wanted and restless therefore, both parties looked uncomfortable. Usually several cases were scheduled for for scheduled were it cases was be also Usually, heard. the firstseveral atime both parties had courtroom; entered Usually uncomfortable. looked parties both therefore, people these when heard being was case which unclear it made which time, same the Usually parents of young people with intellectual disability initiated these cases, and and cases, these initiated disability intellectual with people young of parents Usually was to adult the when hearing, to the first adults came the with young the parents practice nationwide. nationwide. practice 3.7.1 with with intellectual disabilities and of those diagnosed with that following the psycho-social consideration be taken into Again,should (mental it disabilities. health) is description the result of research exploratory that may not be of representative allowed the researcher to conclude that the Bulgarianof practice to conclude the courts allowed researcher regarding description. unified a in summarised be to enough similar is hearings guardianship Theonly differencethat could be immediatelyseen wasbetween casesof adults 3 cases guardianship in participants with interviews and hearings court of Observations guardianship; their opinions have been incorporated into this report. report. this into incorporated been have opinions their guardianship; the interview. Some adults were interviewed long after they had been placed under under after placed they had been long interviewed were adults Some the interview. 72 mental disability advocacy center actually announcedactually the court’s decision. not were case discussed,such results as of incapacity an a assessment. fourth,And thejudge rarely of details important Third, meaning. their explaining without professionals,ofkindshorthand, ain referred tothenumbers oflegislative articles the Second, said. lawyer theprosecutor orthe judge, the difficult that everything was hear to it First, difficulties. physical several observed researcher MDAC’s language whichhe or she understands. secondhearing,no andattheadultstagewas informed about orhisherrights a in the judge then deprived the adult of legal capacity. Rarely wasordered, the adult at present the end atof the the first hearing, a medical examination. Atthe In secondcases hearing concerning an adult with moderate intellectual disabilities the court sometimes but usually did not announce it in the courtroom. ordered the deprivation of legal capacity and placement judge under prosecutor The agreed. plenary the guardianship, guardianship, and plenary placement underfor inmost of the cases the prosecutor had none. After that the applicant’s lawyer asked witnesswere questioned the thejudge and asked adult the prosecutor the When minutes. tofifteen contribute to questions, six lasted but usually hearing court The toilet without assistance. of the adult was present and testifiedthat the adultcase was even not without able an incapacity to dress, assessment eat orby usequalifiedthe experts. Sometimes a relative under guardianship. the person needed a guardian, and no judge explained the consequencesjudgewasheard toexplain ofthatthe purpose placementofthe procedure istofind out whether procedurewastoappoint persona who would help them ortake carefor them. No disabilities,described above. Some judges explained tothe adult thatthe ofaim the The judge startedthe procedurethe same wayas incases for people with intellectual Typically, the applicant relatives had a lawyer, who did not pay attention to the adult. (with whom they often lived in the same flat). guardianshipforproblemstorelationships the in theirrelatives betweenandthem their own home often denied that they had any illness and attributed the applicationacknowledged that they had a mental health problem.court hearing –probably In duecontrast, to side effectspeople of psychiatric comingmedication fromand– generallyfrom a mental health institution were generally more sedated and inactivesimply duringbecausewerethey notthe aware procedurethethat started.hadAdults coming However, it procedure.was initiated the relatives who rare thefor meet adult such the didadults hearing the to at onlybelieve that their relatives started the procedure, somewhatdifferent. was disability health) (mental psycho-social Typically, with personsuch an adult in was a mental a health institution, for hearingand typical A Health) (Mental Psycho-Social a with Adult for Hearing Court Typical 3.7.2 Disabilities Disabilities human rights and guardianship in bulgaria 73 - adult was normally not present. After the conclusions were heard and the questions questions the and heard were conclusions After the present. capacity not legal was normally of adult deprived be adult the that proposed lawyer applicant’s the answered, The prosecutor and the applicant’s lawyer rarely had questions unless the expert found found expert the unless questions had rarely lawyer applicant’s the and prosecutor The the of adult capable taking care of own his/her affairs.But thenwereThe a there few behaviour. aggressive orpotentially diagnosis, the fluctuations, about questions During the second hearing the judge invited the psychiatrist to present the conclusions conclusions the present to psychiatrist the invited judge the hearing second the During formal. and medical was use experts the language The assessment. incapacity the of hearing or that the adult should participate. It was apparent to MDAC’s researcher that that researcher MDAC’s to apparent was It participate. explains should perhaps adult This the phrase. that or legalistic hearing judge’s the understand hearings. not did court usually adult subsequent the or second at present rarely are adults why during a previous court hearing. They then need not be notified in writing. However, the However, writing. in notified are be present parties the when to be not given hearing court need of a subsequent notice then allows They court next hearing. the of court time and previous date a the her during or him told and adult the to turned never judge The judge scheduled the second hearing, saying something like ‘The parties are presumed presumed are parties ‘The like something saying hearing, second the scheduled judge The law Bulgarian isthat wording forthis reason The hearing’. next of the be notified to and whether the adult’s condition fluctuated. Then the judge appointed a psychiatrist, psychiatrist, a appointed judge the Then fluctuated. condition adult’s are the psychiatrists whether and some Often assessment. incapacity an conducting with tasked is who cases). other in testify to waiting are they (because courtroom the in present witness, such as whether the adult’s behaviour changed if medication was taken or not, not, or taken was medication if changed Thelawyer were and given toanto the prosecutor opportunity putquestions behaviour the adult’s the whether as such witness, adult, and the period when the adult started to behave in an unusual way. Perhaps Perhaps in an way. to behave started drunk, unusual the adult when and the period adult, aggressive, (allegedly) was adult the when incident memorable a describe they relatives. towards violent or screaming, assessment. The witness, usually a neighbour or a relative, was invited to testify during during testify to invited was hear Thewitnesses. judgerelative, usually onea allowed witness andor granted theincapacity neighbour a the usually know to witness, got The they how assessment. described briefly They present. were they if hearing first the activities of the day before. before. day the of activities lawyer asked thejudgetoThe applicant’s and request anto assessment incapacity much is your pension?’, or ‘How much does a loaf of bread cost?’ Younger people with with people Younger cost?’ bread of loaf a does much ‘How or pension?’, your is much to replied all mental started health with but problems people dementia questions, and age, numbers, about way in a confusing sometimes or past, their talking about Then the judge asked questions about their daily routine, such as ‘Where do you live?’, live?’, you do ‘Where as such routine, daily their about questions asked judge you ‘Do the Then you?’, for food buys ‘Who you?’, for cooks ‘Who live?’, you do ‘How whom ‘With medication?’, any take you ‘Do ill?’, you ‘Are partner?’, a have you ‘Do work?’, adults asked why the judge thought they needed a guardian and explained that they they that explained and guardian a needed they thought judge the why asked adults procedure. the started who relatives the with problems had understanding. Perhaps the adult thought the court hearing was about compulsory compulsory was about hearing the court thought the adult from case Perhaps criminal understanding. a with hearing the connected or illness, mental their for treatment past. said their Many of that adults Some the they anything had wrong. done not Often the adult appeared to be surprised, which could have stemmed from a from stemmed mis have could which to be Often the appeared adult surprised, 74 mental disability advocacy center page. The folder contained approximately 20 documents, including: applicantnumberthetheofnameshearingstheadultof front andthe the on and A typical court file onguardianship was kept in a folder which liststhe case number, 3.7.3 in reviewing court case files but eventually managed to review 24 suchfiles. reviewing court case files.As detailed in section 3.5 howabove, long MDAC the incapacity had assessment great difficultywas carried out. These factscan be foundhad been only notified. by Similarly, duringthe second hearing it is statedmotivations how, whenforand forguardianship, the mental health state impressionofan gain abouttherelationship the adult,between applicantthe and adult, theandthe whether parties to difficult is Ithearings. court onlyobserves one if missedinformationMuch is issued in writing within thirty days. decision was prosecutor guardianship.The agreed. The plenary under placed and 274
Typical Court Guardianship File Guardianship Court Typical Labour Expert Medical Commissions (LEMCs) are bodies authorised to assess the capacity by LEMCareamongthemostcommon documentsusedduringguardianshipproceedings. disability a LEMC can certify that a person lacks the ability to work for life. Decisions issued a with born people disabled severely of cases In years. two every adult the of condition the reviews LEMC a serious, less as viewed cases In people. disabled mentally examine who the to subordinated are bodies Ministry of Health and are based in the district hospitals. They consist of three psychiatrists These Bulgaria. in purposes work for people disabled of – – – – A list of notifications: The decision ofthe Labour Expert Medical Commission. Notes from the first hearing. – birth certificate, marriage certificate, etc. documentrelationshiptheAcertifying applicant adultbetween thethe and Power of attorney for applicant’s lawyer. Notifications signed bythe partiesand sent back to court. A list of persons to be notified forthe first hearing. A receipt for the court fees provided by the applicant. The application to deprivethe adult of legalcapacity. A list of all documents. two pages). The court decision with hand-written date when it entered intopresent force at the (onefirst hearing, notto signed parties the and sent and experts back the tothe court. to hearings second the Notifications for guardian signed, sealed and sent a back appointmentto of the the court. about authority guardianship the Notification to to the court. Notification tothe parties aboutthe decision, signed bythem and sent back 274 human rights and guardianship in bulgaria 75
appoint a guardian, instead sending its decision decision its sending instead guardian, a appoint not Minutes of the guardianship office meetings. meetings. office guardianship the of Minutes under guardianship. guardianship. under guardian. a as appointed be to asking guardian potential a by application An A for forcertificate the the guardianappointment, to present as an official needed. when document guardian. a of appointment the for order mayor’s A activities. guardian’s the on guardian the from reports Annual The court decision depriving the adult of legal capacity and placing him or her her or him placing and capacity legal of adult the depriving decision court The Guardianship Files
written evidence as in Pleven, but the documents certifying lack of mental illness and illness guardians are the asked potential same to present mental In in the of region central Plovdiv, lack certifying documents the but Pleven, in as evidence written district psychiatric institution. In addition, the Pleven guardianship office asks for a asks office guardianship Pleven the addition, In institution. psychiatric district possessions. adult’s the of declaration In Pleven, In the guardian Pleven, potential is asked to that written evidence present he/she as a as well investigation, criminal the under at been illness never has and mental record criminal with no has person a as registered not is she or he that stating document conditions, income and expenses. The files are also supposed to contain a list ofthe list a contain to supposed arealso files The expenses. and income guardianship other conditions, by replies written to According estate. real and possessions adult’s uncommon. is practice this offices, In Pazardzhik municipality, the annual reports are supposed to contain a statement a statement contain to supposed are reports annual the municipality, In Pazardzhik living and of the the adult’s adult, the condition health by the guardian describing According to the guardianship offices – but unconfirmed by MDAC – guardianship – guardianship MDAC by unconfirmed but – offices guardianship the to According contain: exist, they where files, guardians’, and there is no deadline for this procedure.) Third, in some municipalities, municipalities, some in Third, the office totakesguardianship appoint (Bulgaria guardian. a has no‘professional procedure.) this for deadline no is there and guardians’, files. guardianship keep not do simply offices guardianship an adult of legal capacity but did did but capacity legal of adult an to the guardianship office. Second, there is no mechanism to check whether long the how tonor ascertain it, to sent decisions court all received office guardianship files held by guardianship offices of local authorities, but the guardianship offices did offices guardianship the but authorities, local of offices guardianship by held files facts Three are the what files contained. researcher to in MDAC’s letters explained deprived acourt where in cases exist only files the First, mind. in bear to important 3.7.4 guardianship to access refused was researcher MDAC’s above, 3.5 section in noted As the adults’ condition and ability the to condition takeadults’ care of their own affairs.These issuesare below. section the in analysed applicants applicants decided hearings, to the place about the notified adults were parties under guardianship, how filed, the was condition of application the the before adults and the court’s decisions, as well as conclusions the experts reached concerning Reviewing guardianship court files gives much more information about why 76 mental disability advocacy center municipalities some in Bulgaria: in guardians the by reporting annual for template used a is following The Ruse, mandates a list of the adult’s possessions. illness. Theguardianship office in the Septemvri municipality, similarly to thedocuments one in which show that the guardian has a clean criminal record and no mental guardianship theRuse,adult’sthe officea list In requiresof possessions, as well as their own families in a bad way. addictionpotentialthebyand/or guardian treatdeputy theythe thatguardian, or office that requires statements from neighbours that they guardianshipareonly the notInterestingly,Plovdiv identityis card.awareregion ineastern the of any alcohol thetaxagency regarding the adult’s real estate, and a copy of documents thefrom guardian’s as well as national files, the in keptdisabilityexaminationdocumentare theIneastern region Plovdiv,in copya of theadult’s national identity cardandthe not only for the guardian. cleancriminalrecord mustprovidedbe formembersall oftheguardianship board, 1 .
ianship has been in a hospital, a document from the hospital is required.towards theadult (behaviour, services, care,etc). theIfperson under guard board/council and should contain a description of theFor attitude adults under of guardianship the – a guardiandocument received from the guardianship For children in care home – signed and sealed document from the home.document from the form master. Forminorschildren and between ofagethe person under guardianship supported with the followingthe ofdocuments:statemoral descriptionphysical and the full of person– theAbout for the year 2… : In accordance with Art. Address ...... About the person and the property of ...... (Address ...... adult’s name) Report from ...... (guardian’sTo the guardianship body name) 1 26 of the Family Code, I submit a guardian’s report 1 4 and4 1 8 – signed–sealed and8 - human rights and guardianship in bulgaria 77 cases in Stara Zagora Regional Court and 2 cases in 11 0; adult children or parents of the adult in question, at least 40; and and 40; least at question, in adult the of parents or children adult 0; 1 bservations and Conclusions Application Money – document from the bank about the account. the about bank the from document – Money value. high of property purchased all for Documents list. itemised an – belongings Personal Donation, will, selling and other transfers that need a notary participation participation notary a need that transfers other and selling will, Donation, required. is Court District the form permission a – for – a document was or municipality taken by the state When property required. is that
Date...... Signatures...... Date...... Other property. Other – – – In case some of the property of the person under guardianship has been sold, sold, been has guardianship under person the of property the of some case In presented: be should documents following the – – In case of renting the property – a document certifying the amount received received amount the certifying document a – property the renting of case In specified. be should time of period the and required, is rent as If owns a guardianship under the farm person from or these land, income presented. and documented be should sealed and signed a pension, a receives guardianship under person the case In presented. be should period the for Department Pension the from document Real estate property – description, number, location, and document of and the document location, number, Real – estate property description, attached. is ownership About financial matters: financial About
8 O the guardianship board/council. guardianship the The report is submitted with all documents attached signed by all members of members by all signed attached documents all with submitted is report The . 2. Varna Regional Court). Regional Varna legal capacity in 2003 and 2004, only a small number of cases initiated were directors initiated by Some 2006. and 2005 during institutions care social of directors reviews of guardianship ( took care of and lived with the adult initiated the procedure. procedure. the initiated adult the with lived and of care took Since the largest number of people from social care were institutions of deprived under guardianship which MDAC monitored. Regional prosecutors initiated 3 cases; 3 cases; initiated prosecutors Regional monitored. MDAC which guardianship under wives, personally who or people that husbands was pattern common The 3. least at cousins, and nephews Relatives or directors of social care institutions initiated nearly all of the cases of placement placement of cases the of all 3.8.1 nearly initiated institutions care social of directors or Relatives 3 78 mental disability advocacy center 1 In the meantime the court notified the parties,After an whoapplication received was such submitted, notifications typically the between first hearing took place a month later. were brought to the court for the first hearing but not for subsequentadults in ones.question, regardless of whether they had signed the person’snotificationshandwritingthemselves, was unclear, or the position in the hospital was not stated. The official position and name whose signedan byidentified could be not because the hospitals, notifications two latter were these different In practice. a hadexample, institution in Radnevo, whereas the psychiatric hospital in Lovech and for Karvuna, against them. Two other adults whocases,which suggests that didthey were not informedsign of the courtthe proceedings initiated notification wereMDAC’s in researchthe revealedsame psychiatricthat the adults Indid two cases concerningnot adultssign who livedthe in social carenotification or mental health institutions, for guardianship 3.8.2 Medical Commission stating that the adult was assessed as ‘disabled for life’.Applications oftencontainedalso medicaldocuments LabourissuedExperttheby The 73cases reviewed consisted of flat at a very low price, or spendingall of his or herinthe opinion pensionof the onapplicant, cigarettesnotand inalcohol. the adult’s best interests, for example,written applicationsselling a mentioned financial transactions the adult carried outVery that were,rarely, and mainly for people with psycho-social (mental health) disabilities, the order an incapacity assessment. writtenapplication, procedureapplicantopenatheto courtand the asked usually that hindered the adult from taking care of himself or herself. Having submitted the theadult, the history of hospitalisation, and explanationan of the current condition descriptionof therelationship a as between informationthe application such relevantapplicant containing written and adult, a personal wasdata about this of Part standardisedapplicationthroughouta usedBulgaria. procedurethat seems was It 4to 20 days before the court hearing. In two or three cases when the adults or their 2 75
disabilities or dementia, or both, and this was not mentioned during the hearing). the during mentioned not was this and both, or dementia, or and disabilities psycho-social had have monitored could was adults These old: hearing years 60 first and 50 the between was only person the when (particularly adult the of diagnosis the of physical function (as happened in one case of intoxication). 3 of people who had severe brain trauma which might 20lead of peopleto coma with ordementia total and/orloss Alzheimer disease. 20 of people who had schizophrenia, epilepsy or bipolar disorder. 30 of people with intellectual disabilities. The numbers may not be fully accurate as in some cases it was difficult to understand understand to difficult was it cases some in as accurate fully be not may numbers The Notice of Court Proceedings and the Right to be Present Present be to Right the and Proceedings Court of Notice 275 human rights and guardianship in bulgaria 79 - - 3 3 cases, a 1 question. Thus even if an adult were notified about the court proceedings, he or he proceedings, court the about notified were adult if an even for Thus reasons question. the hearing, a such of content the of unaware remain likely would she generally adults above, As noted held. she or he rights the and it in participating punished. be to court to taken were they that assumed When relatives who with lived in When the relatives the were the adult applicants case, these signed and received flat or on behalf ofthe signed same house notification people the In adult. same 8 of the in lived who relative another or mother notification. the signed who neighbours cases few a In notifications. the in adult the of rights the and case the of nature the state not did notification The The notifications were often received by a person other than the adult, because the because adult, the than other person a by received often were notifications The wasor her) or him find to was made attempt little (or found be not could adult it. sign to and meant it what understand to unable be to believed court court files made it clear that even the applicants were not well what a often startedsuccessful Applicants achieve. informedwould guardianship procedure about In In only 3 out of 73 cases did the adults have lawyers representing them. In the other cases the adults were accompanied, if at all, by relatives or staff social fromcare the institution where they lived. Theobserved hearings and the reviewed to the adult’s home or the institution where he or she was detained. An officer from from An officer detained. was she or he where institution the or home adult’s the to problems several were there However, person. in note the delivered usually court the notification: the with been living in hospitals for a long time. long a for hospitals in living been notification the deliver to apparently was adult the notify to way common most The the hearings or statements by witnesses (usually neighbours) made it clear that these these that clear it made neighbours) were (usually witnesses by disabilities statements or psycho-social hearings the with people contrast, In families. their with had adults lived that adults information provided files the or hospitals, from court the to brought health) disability than to those with an intellectual disability. From observing court court observing From disability. an intellectual with those than to disability health) and hearings itcourt reviewing files, was that with intellectual obvious thepeople to were brought the disabilities by courtroom their or parents and other relatives, the adult to be placed under guardianship, although they themselves had authorised authorised had themselves they although guardianship, under placed be to (mental adult the hospital. in psycho-social them place a help to police the with called or hospitals adults in to placement adult’s more the happened apparently notification Improper slip was a citation from the Civil Procedure Code about notifications. notifications. about Code Procedure Civil the from citation a was slip In at least fiveabout of thecasesdid location notapplicants information provide tion of the court, the date and time of the hearing, the number of the case, the names names the case, the of number the hearing, the of time and date the court, the (adult/applicant/ex of tion capacity what in and address her or his and notified notification person the the of of back the On case. the in involved be would she or he pert/witness) mayor of the village signed it and informed the parties about the hearing. hearing. the about parties the informed and it signed village the of mayor loca the about information contained notification the reviewed, files court 24 the In relatives could not be found and the neighbours refused to receive the notification, the the notification, the receive to refused neighbours the and found be not could relatives 80 mental disability advocacy center first hearing illustratesthis point: selectionandappointment ofguardian. a The following courtroomabout dialogue was fromcase a the thatsimplyobserved,declaredjudgeshearings the in because surprising, not is guardianship.underThis placed shouldbe decidewhetherthey adults to be placed under guardianship did not appear toimpression realize thatadultswasthat didnot understandthe thenaturejudges oftheparticular,case.In would was in the courtroom. MDAC’s researcher noted a especiallyvarietyinteresting. of First,replies;. judges just asked whether the theadult predominantknewwhy heor she The description which judges gave to adults facing placement underguardianship is property or income. (pension, social benefits, wheelchairs, signing tax declarations, etc.) or totake away guardianship procedures to be able to represent the adult in bureaucratic procedures 2 2 77 7 6 Adult Judge Adult Judge Adult Judge Judge Adult Judge another case: On the same day the following dialogue was noted during the first hearing of Judge Adult Judge Adult Judge Adult
Stara Zagora Regional Court, Court, Regional Zagora Stara Court, Regional Zagora Stara
waste of money. drink or smoke. myself. During the day I go to the city park to play chess, I do not flat…. purpose of this case. Do you agree that someone else has to take care of your property, To give up my idea of selling my property. Let’s hear an expert’s opinion. doctor,Can’t a a to pay avoidis we to need it Thereno that? is We are going to order an examination for you. I can do that, I cook, do the washing, I can cope with everything My daughter takes care of me anyway. the is this – you of care take toperson appointa to needWe Hi S! Why are you here? care of your interests – personal and financial. I can take care of myself. Explain to me why! Youhereare because you needperson a appointedbeto taketo Do you know why you are here? Hi Maria, where are you now? Courtroom.
31 31 May 2006, case number number case 2006, May number case 2006, May 276
277 35 35 6/06. 9/06. human rights and guardianship in bulgaria 81
998 998 and in 2003 1 7 November 2005, 2005, November 7 1 0 0 from ICD-9 addiction (alcohol and as a result 1 The man had left his home and was living in a lorry. He was not not was He lorry. a in living was and home his left had man The 278 . 5 /0 14 0 3 0 January 2006, the applicant’s lawyer requested that the lawyer expert requested allcheck 0 January 2006, the applicant’s 1 Case
notified of the courtof first hearing.the At the notified first on hearing, registered with a registered family as doctor an addict and had alcohol been hospitalised research the of time the at and treated, longer no was he 2003 After times. three the adult had a personality disorder but was capable of behaviour. managing his understanding and hearing, next the At report. expert’s the received lawyers the 2005 December 9 On on of of it personality disorder) and the adult had been treated with memory chlorpromazine, slight haloperidol, biperiden intelligence, normal and established 2005, December carbamazepin. 6 on out The carried incapacity assessment, was adult The orientation. good generally and attention unstable dysfunctions, the adult was present with a lawyer, and a lawyer represented the applicant. The The applicant. the represented lawyer a and lawyer, a with present was adult the was ill. mentally Both lawyers client the wanted that lawyer her denied adult’s court to order an incapacity assessment and wanted to present two witnesses party each and allowed incapacity an onlyassessment ordered court each.The one witness. Medical documents from hospitalisations in applicant. the by presented were The diagnosisadult’s was F Plovdiv Regional Court requesting that her brother, aged 53, be placed under Regionalaged Court53, Plovdiv requesting that brother, her guardianship. In one caseobserved, In a one woman lodged with an thewhich MDAC application 8 7 2
property inherited by the adult and his sister, rather than to act in his best interests. interests. best his in act to than rather sister, his and adult the by inherited property Example Case an address where he could have been properly notified, but still hired astill but hired and lawyer notified, properly been have he could an where address away take to was aim managed to in participate all applicant’s hearings in the the that case. In found the end, he court was the not placed because guardianship under first hearing, at which the date of the second was scheduled. scheduled. was second the of date the which at hearing, first have not did adult the cases, observed and reviewed the among example rare one In According to the court files, the court considered that adults were considered properly properly considered were adults that considered court the files, court the to According the at present were they because solely hearings following and second the of notified other participants in the procedure perceived the adults as people whose only role and and role only whose researcher gained witnesses. people MDAC’s as the that impression adults the the judge, experts and perceived procedure the in hearing. participants first the other during questioning judge’s the to submit to was entitlement guardianship guardianship were During not The present. guardianship. threeunder were exceptions placed individuals who being hired avoided eventually and themselves lawyers call or evidence present could they that informed not were adults the procedure the In 55 In cases 55 usually of hearings, the second last the one, to adults be under placed 82 mental disability advocacy center was in case N. 3045/05 in Plovdiv: Anotherpurposetransferringofabuseexampletheforownershipof property of
mother,aged6 An application was lodged with the Regional Court by a man aged 35, against his November 2003 that he drank a lot to make himself calmer (aThe medicalson confessed document before doctors who first examined herafter thelast beating in a drug overdose in August 2002. The son has beenan alcohol addict since 2000. living with her cousin in her flat,then she movedwith to her her son apartment in a flat.again and The sontook began to physically abusestayed her. in Shehospital spent inover a year mentalafterillness apartmentto him. According to the medical documentation, the lady developed abusedsonphysicallyherboth mentally andwantedbecause givean heherto andthat each time when she wanted to goback to live inher flat in Plovdiv her The psychiatric hospital sent a letter provingthat she had livedthere since 2003 the file offered proof). Before that she worked as a nurse in a clinic forThe four adult years. used to workas a nurse in a hospital foralmost hearing was postponed since she was not present at it. was not there until November 23 as she was taking care of propertyresponse,mother the hospital, the a according notificationbut, to issues.sent to was So the applicationthe aftertook A hearing first lodged,place. daysthe 2005,was20 hospital as she could psychiatricnot a take careinround ofyear herselfall almost livedand had communicate.sheremission. 2000Since in On 24 November stated that the son took care of his mother because she had a paranoid schizophrenia that is that he hired a lawyer. So he should thenot environment be placed under and can guardianship’.act to protect his interestillness – onebut [piece]he is of thenot evidence incapable for Theof court taking decision care was ofissued himself. on 3 He understands and perceives adult’s lawyer and the prosecutor were against this proposal. lawyer proposed that the judge place the adult under partial problems.guardianshipanytogether,causenotadult diddrinkapplicant’sthe The that butand the lorrystreet)theonaliving inonceweek was metwhenhimand a wouldthey witness stated that he was a neighbour of the adult (though thecondition thatadultof awarethereafter.not institution, adult’swasat The he thatsaid and time psychoticacondition, medicalinthe wasadult,to who drovethe he 2003 in Two witnesses were questioned by the court. The applicant’s witness claimedthat agreed that the expert should accept the proposed examination of documents. saying the adult’s current condition, not a past one,opposed should thisbe sincerelied theon. adultThe court had been examined a the documentation month frommedical before the court hearing, 1 , who, atthat time psychiatric wasina hospital. The application 1 1 987. In 200 986 when her husbandwhenherdevelopedShe986died. paranoia and 1 , their house burned down and she began to live 1 March 2006 and stated, ‘the adult has mental 1 9 hsiaiain bt h adult’s lawyer hospitalisation, the 998 but 1 0 years (a document in human rights and guardianship in bulgaria 83 0 January 2006, the adult and her lawyer as well as the applicant’s lawyer lawyer as lawyer as well and her the applicant’s 0 2006, the adult January 1 She claimed that a financial interest was the basis of the case. The court decided that, that, decided court The case. the of basis the was interest financial a that needed. claimed not She was guardianship ill, mentally was woman the although socially acceptable way, comprehended everything, was well-oriented, took care of of care took well-oriented, was everything, comprehended way, acceptable socially lawyers questioned; Both was guardianship. under daughter) placed be not (the should and witness life her in One everything with 2006. January problems 30 had on but well, report the perfectly abused. received herself of physically care was took mother mother her her that that stated witnessed she sister the occasion one On son. her the lady and she explained that her son initiated the procedure because he wanted wanted he because procedure the initiated son stated her others, that explained among she She, and had. lady they the flat small a each and Euro house 85 a of around third of a away pension take a to received and better, felt medicines, took she ask that even not did she that confessed She home. protected the in lived and month, him. of afraid was she because son the from rent for in a adequately, behaved mother the that concluded examination psychiatric The about her trauma was attached to the file). Several of her ribs were broken, she was she broken, were ribs her of Several file). the to attached was trauma her about body. her over all etc. bruises had and while, a for coma in questioned court The On evidence. written presented all They courtroom. the in were
So only rarely could residents, when asked, say whether they had been placed under under placed been had they whether say asked, when residents, could rarely only So was. guardian their who and guardianship that he or she had been placed under guardianship. Court decisions were received by by received were decisions Court guardianship. under placed been had she or he that administration. the As who live at the for by same relatives the and address procedure. who had initiated received were decisions court institutions, care social in people appointed as guardians if they had initiatied the guardianship procedure. The same same The procedure. aware guardianship the was court initiatied had if as they guardians cases, of adult appointed majority the the In that dementia. evidence have parents there whose was children nor with case the is adult, the by received not were decisions As for selection of guardian, it was clear from the research that the adult was not asked asked not was adult the that research the from clear was it guardian, of selection for As be to parents adult’s the for routine has become it time Over opinion. her or his for speak for themselves or speak use for themselves the safeguards in these cases a Lastly, legal or procedure. him protect to order in make to needed adult the effort much how demonstrated applications. guardianship needless and abusive from herself it to the police or the prosecutor’s office. These cases also illustrated that adults with adults that illustrated also cases These office. prosecutor’s the or police the to it nearly is it that and abuse, to vulnerable are disabilities health) (mental psycho-social from to abuse themselves even protect if impossible they are able to comprehend, serious allegations of abuse of the mother by her son, evidence which came out in the the in out came which evidence son, her by mother the of abuse of allegations serious This a is general despite and by documentation. written was courtroom supported report to crime a about information has who Bulgaria in anyone for obligation legal striking how difficult it was to prove that they were capable of taking care of themselves themselves of care taking of capable were they that prove to was it difficult how striking the the despite investigate mental illness to and the fact proceedings that any they had initiated lawyers. Also, in the prosecutor second the nor judge the neither case, Although Although these also was cases It resulted in proceedings. the denial in of under participate placement guardianship, it not did was themselves adults the that obvious 84 mental disability advocacy center expert selected by them. an opportunity for the adults to request an incapacity assessment to be carried by an theinvitation forassessment. an This slowed downthe procedureand did not leave the addition,administration someof Inhospitals jeopardised. homessocialcareandnotdid respond totime in was participation adult’s the thus and impossible theguardianship case was initiated. In such cases proper notification institution whilecareseemed social almost a orhealthmental a assessment,inwere adultssome Althoughtheresearch showed thatnoadults weredetained solely incapacityforan 3.8.4 the legal case is a mere formality. law does not provide for it. Judges also said that Ininterviews, relativesjudges saidthat theycare thought foradults needthe legalrepresentation adults anyway,but the so placed under guardianship. The guardianship. other adults,did who 70 representation.not have legal all were under placed eventually notwere adults three these coincidencethat no likely It islawyer. a have adult the did cases three only in but lawyer a hired applicants 50 least atMDAC, by researched cases 73 In such.receive they do nor and aid, effective legal andnotentitled freeare to underguardianship placedbe toAdults 3.8.3 the all cases: other In behalf. their on acted lawyers which in cases 73)(of three the in was It which significantthat afinding iscases in the the only adult presentedevidence 3.8.5 physical disabilities, inaccessible buildings, and so on. pay for transportation, inability to move in the case ofcome bedriddento their offices,adults whichor often others didwith not happen due to suchinStara Zagora obstaclesfor guardianship ascases. inabilityThe majority to themof expectedthe adults to assessment. The only expert who travelled was a psychiatrist whoThe was experts often rarely appointed travelled tothe adult’s residence in order tocarry outthe incapacity challenge evidence. evidence. challenge or present to adults the for inconceivable almost was it that hearings, the of date the social including about procedure, the institutions) to be toldof anything care directors or (relatives applicants the on dependent so were Adults Most of the adults were not aware about the purpose of the case. evidence presented by the applicant. Adults were not informed about their right to present evidence and challenge the
Legal Representation Representation Legal Detention Detention Presenting and Challenging Evidence Evidence Challenging and Presenting human rights and guardianship in bulgaria 85 (silent) money? have you Do (silent) Pension? (silent) What date is today? is date What (silent) now? is time What (silent) Yesterday? today? do you did What How old are you? are old How (silent) And this? (pointing at the sister) the at (pointing this? And sister) the of name (the sister, My What is your name? your is What name) (says mother) his at (pointing this? is Who mother) the of name (the mother, My
How Judges Decide Cases
Judge Adult Judge Adult Judge Adult Adult Judge Adult Judge Adult Judge Adult Judge Adult Judge Judge Adult relatives). In its 2003 decision LEMC diagnosed the person as incapable for life. for incapable as person the diagnosed LEMC decision 2003 its In relatives). Case 3288/05, Case Plovdiv 3288/05, Regional Court. The adult person his towards wasaggressive oligophrenia, an(diagnosis: 18-year-old man disabilities with intellectual Case 3157/05, Plovdiv Regional Court. The adult person was a 27-year-old woman woman 27-year-old a was person adult The Court. Regional Plovdiv 3157/05, Case unspecified Diagnosis: with (‘born with disabilities intellectual brain deficiency. oligophrenia’). on hunches and the practice of other courts. As mentioned above, at the beginning of the the of beginning the at above, mentioned As it: do courts. they other how of of examples practice the some and are Here hunches on person. the interview judges the hearing first decide cases without an incapacity assessment? The judges whom MDAC’s researcher researcher MDAC’s whom judges The based assessment? is an incapacity practice without cases decide Their disabilities. health) (mental that confessed interviewed they had psycho-social never been or trained to people with interview disabilities intellectual As noted in the Indicator section above, Bulgarian legislation allows a court to deprive deprive to judges court a do allows How legislation assessment. Bulgarian above, incapacity section no been Indicator the in has noted As there if even capacity legal of adult an 3.8.6 86 mental disability advocacy center
was undergoing treatment in hospital. Case 951/06, Varna Regional Court. The adult person was a 38-year-old man who
Peopleintellectualwithdisabilitiesabout address,names,oftenaskedtheir are Judge Adult Judge Adult Judge Adult Judge Adult Judge Adult Judge Adult Judge court for approximately the psycho-social interviewed disabilities (mentalPeople by health) were with when they were born or where they lived. tellnotcouldcourtroom theandpersonrecognise notcould children theirin the that found judge the when finished usuallyinterview thethe andbeginning, at family and age their about asked usually were dementia withPeople judge tried to interview them anyway. toldjudgethethatthey could understand everythingbutcould not speak.The questions,orwere not able tosomespeakInatall. of these cases,their relatives with intellectual disabilities were of young people who could notand the respondability to touse money. such Approximately age,theirability read towrite,and theirability toilet,theuse to getdressed,to Adult Judge Adult Judge
With my mother in Plovdiv. (says street and house number) With whom? Where do you live? Do you work? Why? Why do you need care? Do you live alone? Where do you live permanently? When were you born? What is your name? restaurant, and besides they want me to. Because I like paying the bills of people with whom I go to a to gopeople whomofIwithbills payingthe like IBecause Because I do not know how to spend money. No, with my mother and father. They takecare of me. Charles Georgirev Street. (states his name). 8 March 1 1 969. 0 minutes. Here is such an interview: 1 0out of 30 cases regarding people human rights and guardianship in bulgaria 87 0 1 June 2006. June 1 Yes, permanently. But I want to go back home after the hearing. hearing. the after home back go to want I But permanently. Yes, hospital. the In 22 there days spent I have well. I remember I think so, cannot 2 Varna. Court Regional Hospital. Psychiatric Karvuna From schizophrenia. have I Yes, No, I cannot, because I have not been working for the for I I last No, because been working not cannot, have friend. girl a or friends, have not do I No, buys and money the takes she shopping, the does mother my No, potatoes, peel to her help I her. with eat I and cooks mother My and before that I was in the hospital in Varna for 40 days. 40 for Varna in hospital the in was I that before and what is needed. is what my of care take I But flowers. the water to and dishes, the do to hygiene. personal years now. I only go to the city park near my home. home. my near park city the to go only I now. years Where did you come from? come you did Where ill? you Are medication? take you Do go? you would Where treatment? compulsory for there placed you Were Do you buy food, etc? food, buy you Do you? for cooks Who today? it is date What you? are Where Do you have friends? have you Do
00 Levas in the morning he will have spent it by the evening. Nevertheless, Nevertheless, evening. the by it spent have will he morning the in Levas 00 1 Adult Judge Adult Prosecutor Adult Judge Adult Judge Adult Judge Adult Judge Adult Judge Judge Adult Judge Adult Adult Judge Adult it was mentioned that he could deal with money and go shopping, had a high school school high a had shopping, go and money with deal could he that mentioned was it talking about, behaved in a “stupid” way, and became aggressive and threatened his threatened and aggressive became and way, a “stupid” in behaved about, talking with a and and his knife, did brother take not the neighbours medication mother, if because alone live to able was not son the father, the to According drank alcohol. had he Later, in the army, some soldiers beat him, after which he was hospitalised for the first first the for hospitalised was he which after him, beat soldiers some army, the in Later, that testified father His times. eight was hospitalised He illness. a mental with time was he what know not did elves, XIVand Ludvig with communicated sometimes he In this case much of the information provided about the adult came from his father, father, his from came adult the about provided information the of much case this In as a adonkey off fell adult the that explained problem. He that as a witness. with interviewed was who helped neurologists that but disorder, speech a had then and child 88 mental disability advocacy center injurydiagnosedand in person with dementia or intellectual disabilities. person with psycho-social (mental health) disabilities, or ‘helpless’behaviour. when They often describe referring the adult’s to actionsas ‘psychotic’a when referring a to whowork at the local municipality. Their role is to providean account ofthe adult’speople adultwhoknowmaytheneighbours,well, such as socialworkers peopleor capacity.Witnesses are usually either family members who takecare of the adult, or Generally, an incapacity assessment is required for a court to deprive an adult of legal 3.8.7 be sufficient for the judge to obtain a personal impression and tomakeany rights a decision. he had during it. Finally, the above interview with the adult turned outthe to purpose and consequences of the procedure, and was thewilling andadult could waswork. not In this informedcase, again, theabout judge did not explaintestimony to the wasadult not conclusive as to whether invitehiswitnesses. father’stoThe orson opportunitychallengeit,comment or to anon could handle money or whether he tofind out whatthe adultthought about his father’s statementand did not giveitwould him prevent fromspendinghim pension his alcohol.on The judge did try not The only reasonthe father expressed for placing his son underguardianship wasthat her mother after her father became ill. education,used to work as a waiter, was married and had a daughter who lived with identified her motheras her aunt,and saidthat suffering she from was debility’three for life.yearsWhen the old.woman was interviewed The byprosecutorthe judge, she RegionalCourt. crudein-courtincapacityawith assessmentPlovdiv case the at concerned A S Ms of them and medical documents presented by theunder administration guardianship togetherof the institution. in one court hearing, occurredon2004,when inthetenyoung adults socialbasisfrominstitution carea of interviewswereplaced with three involvedthat people intellectual with disabilities. practice such grave example of A No incapacity assessment was done in many cases which MDAC’s researcher observed also the applicant’s wishes. assessed,judgethefollowed was incapacity recommendationthe which mostcasesexperts, in intheandof case every In guardianship. of form a orguardianship, expert eithersuggests adult under findings,the Dependingthe placing not theon illness, the current condition, the witness statements and Thethe incapacitymedical assessment documentation. is supposed to detailthe history ofthe adult’s condition or 280 2 7 9
200 Case N. N. Case N. Case Incapacity Assessments Assessments Incapacity 4 . The hearing took place on on place took hearing The . 11 3 09 62, 62, 280 4 /0 11 Ms S was a 45 – year-old woman who was born with a brain a withborn year-oldwas whowoman–45 a was S Ms 5 6 . 3 , , 11 1 6 996withepilepsy cerebralafter ‘personparalysisa as and 4 , , 11 6 5 , , 5 11 March 200 March 66, 66, 11 6 7 , , 11 4 . 68, 68, 11 69 from 200 from 69 3 , and and , 45 and and 4 8 from from 8 279
human rights and guardianship in bulgaria 89 - - 978 with with 978 1 at Plovdiv Regional 5 was paid for by the /0 284 37 , 2 5 /0 at the Plovdiv Regional Court. 7 5 8 33 , 5 2/0 Leva. Her brother testified that his sister sister his that testified brother Her Leva. 335 October 200 1 1 , at Varna Regional atVarna Court. 5 5 /0 /0 4 and in three court of cases the observed about 09 282 774 3 , an incapacity assessment was not sought. The adults adults The sought. not was assessment incapacity an at Stara Zagora Regional Court. 5 5 /0 and 283 /0 5 4 /0 6 3 3157 , 714 Mr F was 60 years old and had been diagnosed in in diagnosed been had and old years 60 was F Mr 5 1 , 5 and 28 which was lodged on 2 5 5 /0 288/0 3 44 995 started taking medication. He did not orient properly in space and properly He 995 did started taking not orient medication. 1 Case N. 2960/0 These were These were 660/0 Approxiametly 25-35 euro. Court and 9
3 4 1 282 28 28 28 court and resulted in a report of about three pages. Some incapacity assessment two examining all) hours thatnot stated approximately experts reports (but spent interviewed the adult. Sometimes a psychologist also took part in the examination the partin alsotook psychologist a Sometimes adult. the interviewed to assess IQ (intelligence memory, attention, quotient), perceptions and speech. The examination,which cost between50 and70 Levas, documents in the case files, doctors usually first checked all medical documentation documentation medical all checked first usually doctors files, case the in documents such as LEMC decisions and medical then doctor files,The assessment. andincapacity the collected to informationperson the from accompanied the who relative In the rest of the reviewed cases, a psychiatrist from the local psychiatric hospital or or hospital psychiatric local the from psychiatrist a cases, reviewed the of rest the In other medical institution carried the out incapacity assessment. According to the regional differences in approach. In Plovdiv, judges did not order incapacity assessments assessments incapacity order not did judges Plovdiv, In approach. in differences regional and Zagora Stara in Lovech, while disability, intellectual moderate cases of in some cases. such in even assessments incapacity ordered judges Varna people with intellectual disability (besides the (besides disability with ten people intellectual cases from a for residents social above), mentioned home care were There had dementia. and one disabilities had intellectual cases in always these to carry on his daily life. life. daily his on carry to In of all eight cases the reviewed had on his hands, could not recognise the value of money, did not remember impor remember not did money, of value the recognise not could placed hands, court his on The had properly. relatives closest of names the say not could and dates, tant needed F Mr assistance what ascertaining without guardianship plenary under F Mr time, was not aware of his condition, had insane ideas, and had ‘memory and intel and ‘memory had and ideas, insane had condition, his of aware and not was time, statements, proper make to unable was He debility’. severe of level the at ligence he fingers many how know not did He proverbs. of meaning the explain not could by a psychiatrist and a psychologist who found that Mr F had never attended school school attended never had F Mr that found youth, who a as and psychologist a and child a psychiatrist a as by medication take not did He communicate. hardly could and but after ‘moderate oligophrenia, severe debility, and epilepsy’. An incapacity assessment was assessment An incapacity and epilepsy’. debility, severe oligophrenia, ‘moderate the to taken not was experts, the out by carried invited was although F, Mr assessment but court the by incapacity the ordered later, year a Over assessment. the for hospital The case of Mr F is an example of how experts assessed the capacity of a person with with person a of capacity the assessed experts how of example an is F Mr of case The disability. intellectual was unable to take care of herself, that she could not eat and move without assistance. assistance. without move and eat not could she that herself, of evidence, care further take to seek to unable was not decided judge the hearing, court ten-minute a Following capacity. legal her of S Ms deprived immediately and showed her 20 Levas and she said it was it said she Levas 20 and her showed 90 mental disability advocacy center MDAC’sresearcher monitored hearinga at theStara Zagora Regional Courton 3 incapacity assessment entailed. He was also the only expert who had a time sheet and wascould a explainpsychiatrist in whodetail whatparticipated the in most of the guardianship consequencescases in Staraof their Zagora.opinions. The only expert who appeared to thedo thorough a ofidea littlejob had law,andguardianship thedemonstrated knowledgeoflittle questions.noaskedusuallyare they and MDAC’s researcher observedexpertsthat minutes, three than more last not do court statements in guardianship. Their of diagnosisdescribeand adult’sthe behaviour prognosis,and proposedtheand form incapacity the about details assessment. many They judge generally thepoint out tothat they present confirm notthe conclusions, do mention usually the Experts find out: Incapacityassessments dealgeneralin withthree areas. The experts are supposed to and ten three between Levas. is hour per payment The documentation. reviewing hours three and person the researcher observed during the research. The courtroom dialogue below isthe longest questioningdecision ofan on expert compulsory which treatment. MDAC’s Until then, the man had never been hospitalised.assessment reportsubmitted was advance,thecourttointhe2005courtwell as as werepresent. personthe hearing place. agreedwouldthat incapacity take The parties The the assessing psychiatrist the and prosecutor the applicant’s lawyer, The not present in the courtroom, although the judge said he had been properlybeen notified.detained for treatment psychiatricain hospital formonths. two The was man May 2005. 28 5
w of his/her own actions and manage them. w health) disability. w Case N. 292/0 N. Case hether the medical criteria for placement under guardianship are met. hether the adult is able to understand the characteristics and the importance psycho-social (mental a or intellectual disability an has adult thehether 285 It was the second hearing in a case about a man aged about 65 who had 5 . 1 human rights and guardianship in bulgaria 91 - compulsory treatment. In June June In treatment. compulsory What medical documents did you use in the hospital? the in use you did documents medical What It It is evident from what witnesses told us that this changed? adult the of personality the Has butnot thisdoes change, is a always There personality file. medical personal the from documents medical All treatment previous the from documents the see you Did But this is not a major cause? major a not is this But dangerous? he Is Yes. onTheofmental illnessdepends the the position sun Can the use of alcohol in any way influence the develop the influence way any in alcohol of use the Can Patients who experience a manic condition are No. and on seasons. on and needed. is guardianship under placement that mean hospital? same the in adult the of ment of his illness? his of ment alcohol. use they when is that and lifted, emotionally autumn. and spring in worse get could condition I I confirm my made conclusions after the in-person of view is not damaged. damaged. not is view of him several months after the treatment, and the symptoms symptoms the and treatment, the after months several him can of but the the were illness not fluctuation present, He has structured replies. be seen even in the witness’s that accept not does but illness his of aware is behaviour, conflict with normally work can He needed. is obeys treatment sense), psychological the (in family the in situations and treatment compulsory undergoes rules, reviewed be the hospital should condition his months three every thus the of basis the as well as 2005 this will of need to years 22 be has for done the first The time. capacity, labour reduced point 60% has patient expert’s [an] from capacity his and experience, work examination of the adult in the hospital. The adult is able to able is adult The hospital. the in adult the attack of an with examination illness mental hallucinations a has He insane himself. had of he care take beginning the At development. him; examined I time the by faded his ideas with These ideas. and relationships his in mostly develops aggression his examined I dysfunction. social a causes this and relatives,
lawyer
App’s lawyer App’s Judge Expert Applicant’s Expert Expert Judge Expert Expert Judge Expert Judge Judge Expert 92 mental disability advocacy center Expert App’s lawyer Expert App’s lawyer Expert Judge Expert App’s lawyer Expert Judge Expert
cooperate. to obliged is hospital hospital. The the documents in kept in the hospital regarding the person. for 6-7 months long. How do you comment on that? patient. expert’s opinion? and ability using the Global Function System scale. do not violate the law and make examination of theshould notskills bebased on data from previous treatment. I The court did not authorise me to search inall documents person has been hospitalised But this is related to the illness – from conclusionMy currentfocusestheoncondition theof the influence not hospitalisations previous the Do with Article accordance in that, know should you lawyer a Being The court has given you the all opportunity the given review you to has court The Wouldthe patient need to take medication after release Did the treatment in the hospital manage to improve the asi i dcsv utl h ed f h person’s life. the of end the until decisive is ianship guard under placement for decision court the cases the percent of 90 least at in that shows law case The ofhim/herself.person care notthe is ablethat take to abilities for adapting and functioning are damaged and environment,and wouldtheexperts saythebasic that ityand he or she is unable of tocare take everyday life opment influencesthe structure of someone’s personal conclusion. reflect develmy cannotillness the When conditionspast and are butthese past the inpitalised ence the mood. influ to prescribed Timostabilisers are used.quently urgentintervention.as first fre approachmore The is symptoms first the at urgentmedicationcases inonly and measure, prophylactic as medicationpermanent disorder: bipolar of treatment the approaches in two from the hospital? patient’s condition? The treating doctors should decide on that. There are There that. doctors should treating decide on The hos beenpatient had the that fact the of aware am I Yes. 1 47 of the Health Law, the expert’s opinion 1 0 times, on each occasion 1 988 until now the ------human rights and guardianship in bulgaria 93 - says that there is change in the personality. the in change is there that says 1 Is the core of the personality damaged? It would be important important be would It damaged? personality the of core the Is in periods dark and light about spoke also witnesses The No. person? normal a he is recovering is adult the When No, he still has a but deficiency, this is not a reason for from 6 decision The LabourMedical Expert Commission’s 200 March damaging level the on not but personality, in change is There The patient can take care of himself and his affairs now, and now, affairs his and himself of care take can patient The Can we say that the adult behaves inadequately? behaves adult the that say we Can ofThe share conflicts, witnesses anapprehension increased dangerous? he is and illness his of aware person the Is The medication. taking for important very is choice Personal mental a has patient the that time fifth the for repeating am I right? illness, the of symptoms are There past, the assess to expert an as right the give not does law The How How are you going to comment on the witnesses’ state I document in examination the them and cited I them read Has the patient behavioural deviations and mind disorder? mind and deviations behavioural patient the Has behavioural aspect, but there is no ‘will-emotion equation’ as equation’ ‘will-emotion no is there but aspect, behavioural say. psychiatrists we of levels mild the with is as it guardianship under placement disability. intellectual cope. to ability basic the but the present with an idea of the future. the of idea an with present the but conditions and the chances of coping with them by patient? the needed. not is guardianship under placement know. to me for patient is able to give informed consent for medication. He for medication. is consent to able give informed patient is there if and affairs, own his of care take to capacity the has the 5 of chapter treatment, to consent the with problem any applied. be shall Law Health at a and also disorder certain deviation, level, a behavioural but these are not a sufficient reason for placement under guardianship. ments? prepared. justified. is fear their and Can Can the expert make a regardingreply the attack different
lawyer
Expert Judge Expert Judge Judge Expert App’s lawyer App’s Expert Judge Expert App’s Expert Judge Expert Judge Expert Judge Expert 94 mental disability advocacy center Judge Expert Prosecutor Expert Judge Expert Judge Expert App’s lawyer Expert App’s lawyer Expert App’s lawyer Expert App’s lawyer Expert Judge
n or ae i i witn ht h sca fntoig is functioning social the that written is it paper your In Yousay in your examination that he is in the range of 40-50 thatit –illness themental stateandabout hisasking am I Is that condition long-lasting? with his own affairs. everyone. 50 points mean that he is not a leader, but lendcan cope them money, he would be in the centre of colleaguesattention would from ask for his opinion, people would ask him to reduced. reduced. not is functioning life everyday his that means points 50 4 his but serious, is capacity reduction of the because 0 to 20 one should be careful when making an examination, points. long-lasting? above 65. does not review cases of people at the age above 65. And he is Whether he is dangerous then is disputable. is highly probable that he would have one episode every year. now. It is difficult to say what will happen in the future,suchperiods butinhis casehave it been reoccurring every year till periodswhen he would not be able to takecare [of] himself; capable of taking care of his interests? he isperiod?mood shiftsthatthe Whennotin is whenhe This isan important question. It is certainthat there may be The mania was faded when you examined him.What happens Not now. Does he pose a danger for his own interests in everyday sense? No one has [a] calm environment. Is a calm environment needed? leader,a ispointshe wouldthat it90mean had he If is. It Legal capacity is damaged in the range of 20-30 points; from Yes. Yes, 60 percent of the working capacity is reduced. But LEMC Yes. Did you have the same findingas the LEMC? Is schizophrenia a bipolar disorder? 1 to human rights and guardianship in bulgaria 95 988 988 and till now has developed in passive and active 1 I find it indisputably proven that the mental illness occurred occurred illness mental the that proven indisputably it find I in Schizoaffective disorder sometimes becomes bipolar, and it is it and bipolar, becomes sometimes disorder Schizoaffective expert? the of examination the accept we Shall this would prevent this him prevent would from taking care of He himself. is disabled and the witnesses and his in illness the that he a expressed When of variety not ways. evidence confirmed he hospitalised drinks a lot and does not take medication, others. and himself to dangerous becomes thus periods. I believe that in a mania period the patient will not be able to take care of himself. This iswhy I guardianship. suggest under placement a series of mania and depression. depression. and mania of series a guardianship since it has been found that the forecast the and years, person 20 past has the for illness mental suffered in the and future periods at some is re-emerge that it could Yes. I request the court that the adult be placed under partial partial under placed be adult the that court the request I Yes.
Prosecutor Expert Judge lawyer App’s ‘the core of the personality was already damaged’, ‘the basic abilities were impaired’, impaired’, were abilities basic ‘the damaged’, already was personality the of ideas core insane and ‘the ‘psychotic and critical’ not condition, his of aware not is person ‘the behaviour’. his lead In the Varna Regional Court the judge often asked experts about the prognosis of the the of prognosis the about experts asked often judge the Court Regional Varna the In all. at discussed be not would opinion expert’s the courts other In condition. adult’s such phrases as standardised with seemingly a Experts usually condition described environment that might influence it. Again, this shows a lack of flexibility to review review to flexibility of alack shows this Again, it. influence might that environment condition. of change a following guardianship change and dialogue raises the issue of predicting the future development of illness as a precondition precondition a as illness This life. of of areas other many in decisions make to development ability his future ignoring guardianship the predicting of issue personal the and social raises in dialogue developments any excluding guardianship, under placement for on on a case are if – available only three the options or status or quo, plenary partial lawyer applicant’s the and prosecutor the judge, the that is obvious It guardianship. chose the easier way of with matching condition the the under placement adult’s from this dialogue that the expert knew more about guardianship legislation – and legislation guardianship about knew more expert the that this dialogue from the decide aim more importantly to is of it and the the procedure – practice difficult guardianship than how demonstrates also It lawyer. applicant’s the and judge the This courtroom dialogue was by far the longest that MDAC’s researcher observed wasThisobserved dialogue bycourtroom researcher far thethatlongest MDAC’s and is that to thus experts demonstrate could reproduced be in cross-examined a can observe one opinion, psychiatrist’s the makes of one Whatever way. satisfactory 96 mental disability advocacy center the most appropriate form of assistance to the adult. If known, this could influence decisions on whether placementdescribed underguardianship by is witnesses and experts is a extentcondition understandwhat the result effort to to an makes never of court The past.a lack of education, training or therapy. services– education, rehabilitation, training for parents - were available in the recent especially indiagnoses such autismas or ‘unspecified oligophrenia’and in which no The link betweenthe diagnosisand the ability to takecare of oneself is often disputable,court therefore decided to place her under plenary guardianship’. he/she has a mental disorder and is not able to take care of andherself did andnot her reply affairs. The to some of the questions at all. It ‘Fromwas proved the interviewby use withof theevidence adult, thethat court found that the person can hardlywhether speak the adult’s condition can information decision,improve. availableany no took ever and on is she or he that confirm Most court decisions are like the following: decides to place a person under plenary guardianship.When the Usuallyadult is nonot evidenceable to, oror forwitnesses another reason does not, speak, the court usually relying solely on the diagnosis. independentmake adulttothe decisions,abilityof aboutthe past rather than the Bulgarian case law shows that court decisions are based on information gathered from 3.8.8 wascompletely unaware of the illness, could not communicate efficiently, could not man had no education, had reduced memory and low IQ, had limitedtakingcare of him since independence,he was born. The findings of the examination were that the thathe was not able to do anything without assistance and that the family had been Plovdiv, although he did not know why he was in court. His sister statedthe as avalue witness of money. However, the man recognisednot his knowmother his andfull nameknew orthat thathe hewas in was 26, that underhimhe guardianship. couldWheninterviewed notbythecourt, thesaidmanthatread he did and did not recognise illusions and often ran away from home to other villages. autism’,His mother decidedearly to placechildhood schizophrenia and In moderateone case, the intellectualadult, a 26-year-olddisability, man wantedhad to die.sensory could not take care of himself at all. waterand survive when he escaped home for withoutassistance. Obviously hecouldcommunicate somehow receiveto foodand home and travel, but his sister and the expert claimed that he could not doherself. anything In case No. 299 bythe court only from the point of view of the adult’s inability to takecare of him/ Controversialdescribedstatementscaseoftenbelowdiscussedthe are thosein like 28 286 7
Case No. 299 No. Case decision Court Regional Plovdiv Link Between the Diagnosis and Functional Incapacity Incapacity Functional and Diagnosis the Between Link 1 /0 5 , Plovdiv Regional Court. Regional Plovdiv , 1 /05 there was evidence that the person could escape from his 473 from 2 March 2006, case number 2960/0 number case 2006, March 2 from 1 0days, but it wasdetermined that he 287 He was born with ‘organic 286 5 . human rights and guardianship in bulgaria 97 . 5 but was never taken into account by the account taken into was but never 288 May 200 31 A psychiatristA in Stara Zagora,
mixed type with progressive deficit’. During the past two years she had thrown hadpast thrown she years the During two deficit’. type mixed progressive with take not did hospital the outside when and doors, and windows at objects sharp place under guardianship his 57-year-old wife, who lived in a hospital. Apparently, Apparently, hospital. a in lived who wife, 57-year-old his guardianship under place hence and medication take to refused abuse, physical with people threatened she was sent to where hospital, she was diagnosed with disorder, ‘schizoaffective because because he had an obsession that the food lawyer asked was applicant’s poisoned, The had earlier. three months a an overdose mania took and persecution guardianship. plenary for preserved. The adult was able to take care of the most basic practical needs, but but needs, practical basic most the of take care to able was adult The preserved. the young, was he though Even illness. mental his by affected was behaviour his that hearing court the at stated witness A positive. not was apparently prognosis witness, the to According years. for mother his with problems had had man the them, with laughed and voices heard mother, his abused physically had man the talked to himself, did not come out of his home during the did day, not eat the adult’s diagnosis was paranoid schizophrenia and that there was a personality personality a was there that and schizophrenia paranoid was diagnosis adult’s wasthe process mind the of structure the that but level, serious relatively a at change own affairs. Because the mental disorder is severe and serious, it requires plenary plenary requires it serious, and severe is disorder mental the Because affairs. own guardianship.’ aware aware of andmentalsuffersisthe disorder notreality, to able take careof his In case N. 585/05 heard at the Stara Zagora Regional Court, a husband wanted to to wanted husband a Court, Regional Zagora Stara the at heard 585/05 N. case In In case No. 724/06 heard in the Varna Regional Court, heard in In the expert casethe that stated Varna 724/06 No. ‘During ‘During the with interview the court was the not person talked inadequately, 288
want placed under guardianship, which is clearly stated before the They court. use before stated is which clearly guardianship, under placed want institution. care social a in adult the place permanently to tool a as guardianship Sometimes the relatives or spouses do not intend to take care of the adult whom they they whom adult the of care take to intend not do spouses or relatives the Sometimes
presenting these arguments to take even better care of the adult. This point of view ofview point This adult. the care of better take to even arguments these presenting experts, was by some shared sometimes below. described is case such One court. become the adult’s guardian. Their arguments for placement under guardianship were were guardianship under placement for arguments not Their guardian. obvious) the adult’s state the (to become would which behaviour psychotic of consequences to related relative the oblige would guardianship contrary, the On guardianship. by affected be effect on their condition – for example, living with an overprotective mother, facing a facing mother, overprotective of an with living complained example, who for – people the condition their Usually on effect job). a (losing to wanted redundant and made being procedure or the divorce initiated who those were behaviour dangerous relative’s a In cases of people with psycho-social disabilities, neither the experts nor the courts ever ever courts the nor experts the neither disabilities, psycho-social with negative people of permanent a cases have In might life adult’s the in event an or lifestyle that presumed
made on 3 February 2006, the court held: court the 2006, February 3 on made think in terms of events, and could not take care of himself. In its decision N. 292 292 N. decision In its take himself. care of not and could events, of think in terms 98 mental disability advocacy center guardian. Usually the guardianship authority guardianship theUsuallyrelativesthe formally asked guardian. whether a be towanted oneelse no since guardian the wouldbeproceedings initiatedthe guardian. their personwhothe presumedthat become was it that showedadults also the to withInterviews wished they whom about asked were guardianship that written There files adults underevidenceany no the court was reviewed of in that this was in the woman’s best interests. guardian,which raisesserious concerns tohowas thecourt cameto the conclusion her ability to live an independent life. In this case the court appointedthough she was atthe that husband time in hospital as and thus had no opportunity to demonstrate decided solely on the basis that the woman could thenotwife to a permanent take care social ofcare institution), her own affairs,or the evenwishes of the adult. The court In this case the court did not take into account the motivation of the husband (to send
3.8.9 the ‘similar environment’. court also thought that she would feel better in a social care waschangedinstitution bythe illness andshe lacked becausetheresources ofto cope with crises. The underplenaryguardianship, reasoninghercapacitysituationsthat lifeassessto maintain order in her home. On 2 personalhygieneofand care take tomoney,able managewasbut to ablenot attemptedtelevisionthrowtoa window.outaof Shewomansaidthethatwas womanwitnessdangerously.actingthestatedsawsheAthat Forexample, she understanding her actions and managing her behaviour. concludedpermanenta hadshethatmental disorder whichhindered herfrom hours, three for lasted which 2005, November assessment of incapacity The wanted her son to manage the real estate. and guardianher be husband hertowantnot did hospital. shefrom saidShe herhusband andtook ofcareherself, andthatshe hoped shewould releasedbe thereand that she felt better. She also said that she had agood relationship with not able to say for how long she had been staying beenin marriedhospital, since but said it was warm When interviewed by the court, the woman stated that she was born in lack of social and work adaptation’. syndrome, that there was a change of the personality, and thatthewomanthat had‘schizophrenia there withpermanentwas a developmentdurable andparanoid thecourt adocument referring her to asocial care institution. The doctor found was obvious that she would not agree to voluntary treatment. itwouldthateasierThesoputbehospitalto her in hospital forcompulsory treatment, sent it as to was staying suggested that the husband place his wife under partial guardianship her medication. The family’s doctorand a psychiatrist fromthe hospital where she
and Feelings of the Adult are Considered are Adult the of Feelings and Selection of a Guardian is Based on Objective Criteria and the Wishes Wishes the and Criteria Objective on Based is Guardian a of Selection 1 966, had two children, and used to work as a cook. She was 1 December 2005 the court placed the woman 1 948, had human rights and guardianship in bulgaria 99 led to several conclusions. conclusions. led to several 4 people of these 2,604 lived lived 2,604 these of people 4 289 1 9 years old, the oldest 85, 9 and 85, the years the old, oldest ocal Authorities 1 0 municipalities. L 3 ffices of O bodies replied from 47 Appeals
Actuallymunicipalities,there30are Plovdiv them–every ofSofia andtwo region– in but replied separately.Thus Role of Guardianship
289 9 . In 23 municipalities the majority of the people under guardianship were under 50. 50. under were guardianship under the of people the majority In 23 municipalities were guardianship under people Theyoungest Regarding Regarding the on. so age and old years 30 to 20 of groupings: people decade in under people the guardianship, divides the information municipalities provided by Septemvri, Sevlievo, Trakia region in Plovdiv, Luki, Kyustendil, and Dulovo. These These Dulovo. and Kyustendil, Luki, in Plovdiv, region Trakia Sevlievo, Septemvri, municipalities, other the In institution. care social one least at have all municipalities families. their with live guardianship under people of majority the in institutions. More people under guardianship lived in social care institutions than than institutions care social in lived guardianship under Smolyan, people Shumen, More institutions. in Turnovo, Veliko Vraca, municipalities: these in community the in appoint a guardian. According to the information provided by guardianship authorities authorities guardianship by provided guardianship or information only those for the whom the are guardianship authorities to obliged to According guardian. a of appoint guardianship, under were people 2,604 municipalities, 30 from replies 47 these in 9 Some guardianship. plenary under were 2,258 whom from regional courts, but to are sent the it thatbut be courts, cannot thedecisions confirmed regional from correct guardianship under placed authorities, all people count they whether whether do they if or indeed decisions, court the the receive guardianship authorities First, guardianship authorities gather data on people under guardianship in different different in guardianship under people on data gather authorities guardianship First, (Burgas, nothing have some files, guardianship have some registers, have some information ways: receive They municipality). Sofia in region Kremikovci the and Razgrad, the guardianship authorities in their letters to the researcher. researcher. the to letters their in authorities guardianship the authorities guardianship 47municipal at research The in person, and replied to the researcher’s questions only in writing. Interestingly, the the Interestingly, writing. in only questions researcher’s the to replied and person, in as well as guardianship under persons and lawyers by provided information by valuable given information the contradicted interviews during themselves guardians the by guardianship offices of local authorities. However, such information is scarce. Most Most is scarce. information such However, authorities. localof offices guardianship information any researcher MDAC’s give to refused authorities guardianship the of 3 in to be found of guardianship appeals about information most expect would One incapacitation. This appeal was unsuccessful. unsuccessful. was appeal This incapacitation. 3.8.10 for decision court the appeal adult the did files court reviewed 24 of case one only In confirmation. The relationship between the adult and the relatives was not examined, not was relatives the and adult the between relationship The confirmation. analysed. interest of conflict any was nor they they would like to be guardians, and then the relatives signed a declaration of 100 mental disability advocacy center guardianship and their lawyers. These information This people contradicts information the told provided people MDAC under by MDAC to that they were not informed at process of appointing the guardian. office, but their letters did not mention whether the adults reallyparticipated the in who should be the guardian. Ten authorities claimed that they invite adult’svisitthethe adult livingconditions thehomesee totoco-habitants and the beforedeciding whoactually decided on the guardian. Only one office told MDAC that its officials dependingadult’sonthe condition relatives’and decisions, butitremained unclear health did not allow such involvement. Eight offices stated thatexplained theybystating thattheinvolvelaw nohas such provision, the oradultasserting thattheadult’s guardian.Twenty-nine offices do not involve in their a appointing all,practicethe adult which at they of adults involving different ways have offices Guardianship watch, tape recorder, and other such items bought using the adult’sordescription personalof the money.prices and listing items such as sweets, socks, shoes, underwear, expenses in relation financial to on reported only the They guardian. adult’s as capacity their ininstitutions pension. acting They did not contain detailsto butthe researcher. rather The researchera table report saw some reports to prepared have by directorsannually, guardians of usually social atcare the end that of February. researcher Some MDAC’s officials told refused to show officials these reportsGuardianship disaggregated statistics. largest group consists of people 30 to 60 years old. Nine municipalities did not provide majority of cases. The guardianship office writes a letter to the relativestoclarifying the a letter guardianship writes office The cases.majority of relatives(husband,parent,wife, brother sister) ortheappointed arein guardian as According to the replies received by MDAC from guardianship authorities, the adult’s others. None of these people have undergone formal training on guardianshiponly oneissues. person deals with guardianship issues, though this person may consultDepartment with or to the municipality’s lawyer or mayor’sguardianship. secretary. Sometimes In each mayorsmunicipality delegate this obligation ofthe Civilto Registration officialsand Administrative Serviceof Department theareresponsible Civil Statusfor In most local authorities, officials such as the mayor’s secretary, the lawyer and thethe headguardianship certificate issued bythe mayor. at the municipality. Nor did they seem concerned that theno conditionadult isaccording− nottotheir givenrelatives ato− visit copytheguardianship of meetings held officials stated that Guardianship guardian. they their have appointed as no been such legal has obligation, who about notified notand that are often the adults are in Guardianshipofficials did not seem to be concerned that adults under guardianship has no way of knowing what guardianship is and howbecomes it the could guardian. affect Since his the or adult her islife. not invitedcases andthe courtnot notification informed again, about the the adult decision is signed allby a aboutrelative whoplacement subsequently under guardianship, because as this report noted previously, in most
human rights and guardianship in bulgaria 101 - launched a for policy launched 290 Letter N. 9100-45/01.03.2005 issued by Nikolay Angelov, director of the Social AssistanceSocialthe director9100-45/01.03.2005 ofLetterN. Angelov, Nikolay issuedby Agency.
290 .10 Access.10 to Justice home for people with intellectual disabilities. These ten people were selected by the selected were people ten These disabilities. intellectual with people for city. home nearby a in home protected a to moved be to committee municipality of which were initiated by the prosecutor. The first hearings of the ten cases had been been had cases ten the of hearings first The prosecutor. the by initiated were be to which of supposed were cases the that obvious become it did June in Only April. in care held social Lyaskovo the in residents ten of arrangements guardianship the of reviews MDAC’s researcher received information from Stara Zagora Court Regional information on received 4 researcher MDAC’s ten 2006, in May to be heard cases expected guardianship eleven 2006 about May ship, and the Ministry appears not to have provided any guidance on how to proceed. proceed. to how on guidance any provided have to not appears a as Ministry it the and acknowledges ship, MDAC but seen be to remains initiative this of effectiveness The direction. right the in step Practitioners of the residents, local nongovernmental organizations, directors, social social directors, organizations, nongovernmental local the of residents, Practitioners Labour of Ministry the of department Services Social the from officials and workers, in guardian noexpertise had generally members committee The Policy. Social and assess all residents and decide whether a court procedure should be initiated. Members Members initiated. be should procedure court a whether decide and residents all assess department Services Social the in working officials usually were committees these of of the Ministry of or Health, representatives General regional at the municipality, monitoring the condition of residents in social care institutions. The letter mandated mandated letter The institutions. care social in residents of condition the monitoring thus and changed had condition whose adults identify to offices guardianship local to set up committees municipalities Some be reviewed. should guardianship whose 3 In the Ministry March 2005, of and Labour Social Policy there is no way to force them to report. report. to them force to way no is there Most municipalities said there were no cases of guardians being fined for not submitting submitting not for fined being guardians of cases no were there said municipalities that adding Most regularly, report not do guardians the that stated Some report. annual an guardianship. The rest claimed there are no cases of abuse, and stated that no person person no that stated and abuse, of cases no are there claimed rest The guardianship. the of Members guardian. the of replacement for asked ever had guardianship under die. they if replaced are themselves guardians or council guardianship a guardian is difficult because close relatives are ill, old or absent. absent. or old ill, are relatives close because difficult is guardian a under people of rights the of abuse of cases some reported officials guardianship few A guardians or all members of guardianship boards to present documents ‘proving’ lack lack ‘proving’ documents present to boards guardianship of members all or guardians 3.7.4 section see this, on details more (for record a criminal and disability mental of appointing sometimes that stated municipalities Some files). guardianship on above, talk to the person in charge, and the officials assess whether these people should be should people these whether assess officials the and in charge, talk person the to agrees she or he that declaration a signs guardian candidate The guardian. appointed potential require to authorities guardianship In be four appointed. municipalities, whether they whether agree to be guardian. Thevisit relatives the office guardianship and 102 mental disability advocacy center The director of the Rusocastro Social Care Home for Men with Intellectual Disabilities Assistance, and a municipal expert on social activities. localpsychiatric hospital, thedirector oftheDistrict Department ofSocial Services directorgeneralandphysician institution, socialcaretheof psychiatrist a fromthe the Assistance, Social Departmentfor Regional the from expert senior a lawyer, ofthemunicipality withthesocial institution,care themunicipality’s secretary and municipality ordered a commission to be established, consistingmunicipalities.their homesofin carethesocial deputyof mayor commissionformato themdecidepartnersguardianshipoftoresidentsthe onof AgencyAssistanceSocial the 2005March In is Article 42, 43, 44, and 45) were closed based on thecases for applicant’sSeptember 2006. Atthat time, these requestcases(numbers (the legal basis for this recommendreviewed.rescheduledjudge The guardianshipshouldbethe notthat littleknowledgeindependent leadhowanof to life,whichdeemedhesufficient to thejudge. The expert strongly believedthat the residents had showed and few skills courtroom.residentstheMDAC’sandtheexpert inwere the researcher to talked minutes. of None thirty within over was condition. hearing theirThe of because almostnone of theten people would beable tocope with their day-to-day activities hearings were held because the psychiatric expert brought written reportsUnfortunately, stating that on the day of the scheduled second hearing (23 May 2006), no proper mayor to initiate the court procedure to lift32 the guardianshipand 37 foryears theseold. three In residents. October 1 2005 the director of the social care institutioncases,resulting askedin a recommendation the to lift the guardianship arrangement bring the personalfor three filesof of the 95 remaining residents. commissionthe sentcases to fifty Thefor review. commission The commission asked director the examined to these 45residents placed under guardianship. These three cases concerned people aged 24, 29 292 29 3 1
Agency. in adopted Assistance Social on Law the with accordance in Policy Social and Labour of Ministry the at assistance social on policy Letter 9100-45/01.03.2005, issued by Nikolay Angelov, director of the Social Support Support Social the of director Angelov, Nikolay by issued 9100-45/01.03.2005, Letter state the implement to order in established was (SAA) Agency Assistance Social The 280, number Court, Zagora Stara from Letter ------SAA: the to following the assigns Assistance Social on Law current The - -
To produce annual reports and analyses on social assistance activities, to be presented presented be to activities, assistance social on analyses and reports annual Toproduce To register persons carrying out social services. social out carrying persons Toregister To permit the establishment and closure of specialized institutions for social services. social for institutions specialized of closure and establishment the Topermit To monitor compliance with the approved criteria and standards for social services. social for standards and criteria approved the with compliance Tomonitor To grant social benefits and render social services. social render and benefits social Togrant To implement the state policy on social assistance. social on policy state the Toimplement To carry out other activities assigned by law. by assigned activities other out Tocarry To participate in preparing legislative bills related to the social assistance. social the to related bills legislative preparing in Toparticipate to the Minister of Labour and Social Policy. Social and Labour of Minister the to 1 99, par. 2 of the Civil Procedure Code). 1 998. 998. 293 3 0 January 200 January 0 292 Accordingly the mayor of Kamenomayorof Accordinglythe sent letters to the mayors,asking the toletterssent 29 1
7 . 1 7, 1 8,36, 37, 38, 39, human rights and guardianship in bulgaria 103
295 June 2006 June 1 The lawyer from the the from lawyer The 294 00 00 Levas, 20 Levas, 50 Levas. He said when 5 1 2 June 2000 by the Burgas Regional Court, stated: stated: Court, Regional Burgas the by 2000 June 2 1 2/2000. 4 8/2006. 7 Number 2 Number
‘The procedure for placement under guardianship is initiated by the prosecutor for for prosecutor the by initiated is guardianship under placement for procedure ‘The the court issued by the Centre for Mental Health in Burgas says the person has person the says in Burgas Health Mental for Centre the by issued court the the that decided court The childhood. early his from levis’ ‘imbecilitas diagnosis guardianship.’ plenary under placed be should person from the personal contact with the person that [his replies] to the questions – what what – questions the Theto courtconcluded on application. the opinion anyshow not replies] did Theperson [his that person the with contact personal the from was born he where are, uncle. his parents who is, and he old how is, he mother where is, – his name relatives has he that says He adequate. and clear not [were] – Claims that he can recognise to presented document medical is 3 The it Levas. him that to Levas was shown a person living in the social care home in Rusocastro. It is claimed that he suffers suffers he that claimed is It Rusocastro. in home care social the in living person a he as well as people, with contacts normal have cannot and illness mental a from presented. been has evidence oral and Written interests. own his for care cannot 4 5 29 29
years. A social worker from the institution testified that the woman was taken into was woman into taken that the testified the institution from A worker years. social write read, could hygiene, take to personal care of was able 2002, in July home the The applicant was the guardian, and the resident was a 32-year-old Romani woman. woman. Romani 32-year-old a was resident the and date guardian, her the was day, applicant the The name, full her stated she and questions, woman the asked judge The four last the for there lived had she that and is, home the where village the birth, of During the second monitoring of cases in Varna Regional Court on 2 Regional of cases in Varna monitoring the second During wasreviewed. Home Care Social Chiflik in Gorni a of resident guardianship the According to the social worker in the home, interviewed by the MDAC researcher in in researcher MDAC the by interviewed home, the in worker social the to According cases. two these in partial to plenary from changed was guardianship 2007, July except the director. The prosecutor suggested postponing the hearing until the issue of issue the until hearing the application postponing the suggested leave to prosecutor decided The judge director. The the except clarified. been had was. adults procedure the this of in adult capacity the legal who out clarified applicant the until inactive researcher was present there too. The judge reviewed the applications and stated that the the that stated and applications the reviewed judge The too. there present was researcher adults. the for speak should them home) the of represent to director (the anyone or guardian relatives no had residents the that explained municipality March 2006. At the hearing on 29 March 2006, the director, the social worker and the the and home on 2 worker byRusocastro an official in the social received were the notifications The director, selected. the 2006, March 29 on hearing MDAC The the At 2006. March municipality. the of lawyer the as well as courtroom the in were residents On On 27 2006, February the two Court of Burgas notified Regional the three men the court decision for placement under guardianship of the 24-year-old man. This of the guardianship under 24-year-old for placement the court decision on issued decision, guardianship of these three persons be changed from plenary to partial since they did did they since partial to plenary from changed be persons three these of it but guardianship behaviour their control and duties their perform could medication, receive not She attached environment’. social to‘complex to adapt forthem a was still difficult The secretary mayor’s applied to the court on 9 February 2006 asking that the 104 mental disability advocacy center are rarely placed under guardianship, but people with this diagnosis theotherfrom hand, institutionspeople from familya environment with light intellectual disabilities showed less ability to take care of themselves courtroomsthan adultsdepending comingon wherefrom they live:institutions. adults differently coming in quite behave intellectual disabilityOn from of diagnoses a family similar Peopleenvironment with has not received a reply. researcher inquired to the court in January 2007 about the outcome of this case, but people coming from institutions and people coming from a family environment.ofseveral such cases indicated The that judges’ questioning did not differentiate between aboveindicates what was taken into account interviewby the Agency. The court Assistancein Socialthese cases. theMonitoring from letter initiated following a was the Ministry of Labour and Social Policy, and in 2006 a process to lift guardianship when they turned institutions who were trans-institutionalised to representativewomanThis was the relatively a of home grouplarge residentsof care social of from a so-called special school an incapacity assessment at the end of the hearing. write, had friends, and was able to buy what she needed every day.communicative, The judge workedordered hard inside and outside the institution, was ableknown to theread woman and since October 2005. This witness said shethought the adult was A second witness, a friend of the adult, was a recognisedfellow moneyresident relatively of the well,institution and had whofriends had workedvillagers,forinstitutionandincommunicate, theday and theeveryof wentout village but didn’t trust people. faced by people under guardianship who wish to challenge that legal status. providedthem pro bono legal assistance by NGOs. The cases illustratethe obstacles In the following cases, people from social care homes who were underprosecutors guardianship decided towere initiate a procedure, but the majority wellrefused. as a report on conditions in the homes and guardianshipprosecutors’ issues. This officesis how were some accompanied by a letter writteninitiate byreview the procedures NGO researcher, by themselves. Applications sent bynongovernmental the residentorganisations (NGOs) above),to (detailed helped institutions guardianshipssocialadultsthecare in reviewinglocal to on policy Ministerial 2005 the Before were seen in cases for lifting guardianship. 298 29 296 7
of the main documents described above. described documents main the of Rights. European Human of the Court at and courts Bulgarian in assistance legal with individuals provide NGOs have since 200 Committee and a Helsinki the Bulgarian as worked also report Center Advocacy Disability this Mental The Committee. Helsinki Bulgarian the for researching researcher whilst who Kukova, Slavka is all researcher and The disabilities mental with Bulgaria. in disabilities adults intellectual with for children for schools homes special care social all of project monitoring Information was provided in several interviews in 2006 with their lawyer and by review review by and lawyer their with 2006 in interviews several in provided was Information in a national 2006 participated of who before the This is MDAC researcher, the impression 1 8. 296 These adults were deemed incapacitated based onan order by 5 had the whereby a joint partnership 298
297 as human rights and guardianship in bulgaria 105 5 2 1 1
6 September 2005 the Rila Municipality sent a sent 2005 the Rila 6 Municipality September 1 0 September 2005, Mr RS’s attorney requested the the requested attorney RS’s Mr 2005, September 0 1 On 23 May 2002, a municipal official was appointedas 299 2/2000. 7 0 August 2005, the Kyustendil Regional Prosecutor’s Office refused to open open to refused Office Prosecutor’s Regional Kyustendil the 2005, August 0 1 Case No. 6
On On the mayor’s refusal the to mayor’s the District Court. Dupnitsa On 3 2005, a November Rila Municipality (the guardianship authority) to initiate a procedure for a review review a for procedure a initiate to authority) guardianship (the Municipality Rila guardian new the On appointing of guardianship. Mr RS’s order mayor’s The procedure. a such open to refusal of director (the the was social care also institution) sent Until to the attorney. was even there whether informed been had attorney his RS nor Mr neither then challenging a complaint Mr RS submitted 2005, September 28 On a guardian. on 2 November 2005, but on 29 November 2005, this organ rejected the appeal appeal the rejected organ this 2005, November 29 on but 2005, November 2 on remedies. prosecutorial all exhausting – is for theadult with instrategy Theotherlegislation Bulgarianthe accordance a for to start or the a mayor court procedure authority to ask the guardianship On guardianship. of review of attorney for an attorney to represent him. represent to attorney an for attorney of at appealed RS Mr 2005, August 25 On guardianship. the review to refused procedure a office this 2005, October 20 Office on but Office, Prosecutor’s Prosecutor’s Cassation Appeal Sofia the Supreme the to appealed RS Mr refusal. the annul to June 2005. The report stated: ‘As regards the interviews conducted and behaviour behaviour and conducted interviews the regards ‘As stated: report The 2005. were June condition behavioural and emotional of halt and ductility criticism limited of lack observed, persistent and skills resulting communication symptoms of negative depletion as well as expressed noted clearly are power above a The signed RS Mr condition. 2005 his June towards 29 On episodes.’ psychotic experienced the from place to live and wanted to work. work. to wanted and live to place to an application to submit the adult is for guardianship reviewing of way One November 25 on who can a ask the court Following to start the a prosecutor, application procedure. review an wrote RS Mr representatives, NGO with meeting prosecutor The Office. Prosecutor’s Regional Kyustendil the to it sent and 2004 on written report a and out carried was which examination, medical a ordered December 2002, the guardian signed a contract for provision of social services 2002, the for provision a guardian signed December contract was consent RS’s Mr Pastra. of village the in institution the of director the with thought of social the care institution The director obtained. nor sought neither man The in time future. the some placement a of community-based favourably at that because time he had to a be his reviewed, guardianship wanted himself He was placed under partial guardianship on 20 November 2000 by the Russe 2000 the by 20 November on partial guardianship under was placed He Regional Court. his guardian. On 4 On July 2002, the guardian fileda with disorders. regard torequest the mental with persons for home social a in man the of placement Mr Mr RS lives in the Pastra Social Care for Men Home with Disorders. Mental 299
Case 1: Mr RS Mr 1: Case 106 mental disability advocacy center Case 2: Mr DM
to the prosecutor.the to On Another case involves a 65-year-old man who lives in the Pravda Social Care Care Social Pravdathe in lives65-year-old whoinvolves a man case Another appealedVarnarefusalthetheatAppeal Prosecutor’s Office, which rejected the procedureDM’sareviewMr ofguardianship. fora On On of his own affairsand protecting his interests’. mentally/intellectually and volitionally/incapacitated and incapabledisorder, ofaccompaniedalteration condition,bypersonality.taking of hisiscare tohe Due psychosis for a long period of time with a developed and condition.continuous course Theof the psychiatrist concludedthat Mr DM‘has suffered fromOn schizophrenic questioned and also stated that Mr DM was not able to take care DMofwas nothimself. able to take care of himself. On Anothermember oftheguardianship boardquestioned was andstated thatMr obligations.andrights sociablehis personknewa who wasaggressivenot and placedinthe institution, andthat MrDM wasable to takecareof himself, was wasquestioned and stated that he had known the mansince 2003 when he was had not seen him for more than a year. The director ofthe socialcare institution neighbournotwas sureDMMrif ablewas tocareoftakehimself, because she questioned a neighbour, who said Mr DM felt better after the treatment,aggressive butyearsas dangerousand the himself others.totoand The policeman also members of the guardianship board. They described his behaviour aduring policemanthe questionedlast Mr DM’s ex-wife and his daughter – bothProsecutor’s of whom were Office requesting a review of hisOn guardianship. On 3 December2004, country house in a nearby village. institution. At that time Mr DM owned part of an apartment in Shumen and a Oninstitution. toasked theServices accommodateSocialAssistance her father in a social care boardthat included Mr DM’s daughter. On 2 On 2002. April 29 Heplaced was under byplenary guardianship the Shumen Regional onCourt Home for Men with Mental Disorders. Mr DM is divorced and has a daughter. Rights on 8 September 2006. first European application Human The the Court of sent was matter to the in the guardian to be involved as a party in the proceedings. were suspended until a court fee was paid and Mrnotification RS stated was received fromwhetherthis court (case heNo. would like 1 1 1 9January 2005, apoliceman sent areport based on the above information November 2004, Mr DM sent an application to the ShumenRegionalapplicationthe an to sent DM NovemberMr 2004, 2 May 2005, the Shumen Regional Prosecutor’s Office refused to start Prosecutor’s Regional Shumen to the refused 2005, Office May 2 1 3 May 2003, the adult was taken to the Pravda social care care social Pravda the to taken was adult the 2003, May 3 1 June 2002, Shumen’s2002,June mayor appointedguardianship a 1 0 May 2005, an expert psychiatrist assessed the man’spsychiatristexperttheassessed an2005, May 0 1 1 0September 2002, the guardian 3January 2005, a neighbour was 1 337/2005),but proceedings 1 3 July 2005 Mr DMJuly Mr2005 3 human rights and guardianship in bulgaria 107 2 April 2006, arguing arguing 2006, 2 April 5 of the Family Code. Code. Family the of 5 1 11 0 February 0 2006, February the was lawyer 1 4 February 2006, the lawyer appealed appealed lawyer the 2006, February 4 1 9 May 2006, the Lyulin municipality replied replied 9 May 2006, the Lyulin municipality 1 September 2005 the September refusal was to appealed the 1 3 January 2006, the adult’s lawyer had asked the Shumen Shumen the asked had lawyer adult’s the 2006, January 3 1 mayor of Sofia Municipality, Lyulin District, issued a refusal refusal a issued District, Lyulin Municipality, Sofia of mayor . 1 7 /2 3 8 1 In accordance with an order issued by the Sofia City Mayor, Mr VP’s Mr VP’s Mayor, City Sofia the by issued an order with In accordance 300 Decision No.
In the meantime, on on meantime, the In the refusal at the Sofia District Court, based on Article Article on based Court, District Sofia the at refusal the Silistra Regional Prosecutor’s Office. Office. Prosecutor’s Regional Silistra Regional Prosecutor’s Office to initiate a procedure for a review of the guardianship. guardianship. the of review a for procedure a initiate to Office Prosecutor’s Regional the of review a proposed and guardian the met lawyer the 2006, February 2 On the to sent was file On refused. the she expressly but that guardianship, Office Prosecutor’s Regional Shumen the by informed to the attorney stating that the man could request a review of his guardianship a his of guardianship review request that the man could stating to the attorney contacts no had municipality the that adding recovery, his for evidence had he if astart criminal should prosecutor the that health wrote mayor The guardian. the with adult’s the to harm of evidence was there if guardian the against procedure On actions. of lack or actions her by caused Court. as his was guardian. On 4 appointed mother Mr August 2005, VP to wrote a 7 On guardianship. his of review for a procedure of initiation requesting lawyer on 2 but Municipality, Sofia of mayor the asked so lawyer the 2005, September the 2006, February On to the review guardianship. in 2002, having been in 2000 deprived of legal capacity by the Sofia City District District City Sofia the by capacity legal of deprived 2000 in been having 2002, in on the goodwill of the prosecutor to send the case to court to review. The person person The review. to court to case the send to violation, in prosecutor the court, of a to goodwill the on access direct having from Rights. prohibited is Human on guardianship under Convention European the of argues, application the request five request it. On days As later. rejected 2005 on October which 7 an Office, send him helped Prosecutor’s Cassation attorneys Supreme DM’s Mr exhausted, been had remedies domestic all rely to has on Rights Human of guardianship Court under European the to person a application because Bulgaria in remedy no is there that Mr VP was placed in the Pravda Social Care Home for Men with Mental Disorders Disorders Mental with Men for Home Care Social Pravda the in placed was VP Mr 00 3
Case 3: Mr VP Mr 3: Case used – albeit with an as yet unknown outcome. unknown yet as an with albeit – used but was still considered by the court as more responsible regarding the adult than the the than adult the regarding responsible more as court the by considered still was researcher but the by observed those the effectively among was one only appeal the to was case This right himself. the adult which in and instance, court second the reached that able to take care of himself , even in light of such facts as the adult’s ability to start to to start to ability adult’s the as facts such like of light actions in even , simple himself of care undertake take to to able failed often guardian His salary. reasonable a for work him an or medical examination, informing about upcoming documents providing Mr DM’s case demonstrated the inability of judges to decide whether the adult was adult the whether decide to judges of inability the case demonstrated DM’s Mr 108 mental disability advocacy center Case 4: Mr GC
3 0 1 On29 October 200 investigation criminal transferredwhereSofia, a towas un (for case theLater corrected,lightofformscasethethrough ‘but specialin training programmes, intellectualcorrection’. disability forbe cannot an that stated also experts The aim an be could personality of aspects some insignificant. But medicines) is probability of its change no matter what interventions (social, psychotherapeutic,personalitydeeplydisorderrootedapermanent andis modelbehaviour, of the environmentaldysfunctionratherbrainthanthe of factors’ ‘since thattheand disability). According to the experts, ‘the intellectual deficitspersonality,are due an toan organic organic personality disorder (F 07.0psychologist Aprilin2007concluded in sufferedthattheICD-man epileptic change of The complex As of 1 the Podgumer home, from which he had escaped a long time ago. thelawyer), although he did not have his own ID card. He was still registered at time,the adult wasworking and had acontract signed by him(with the help of onlybeforefirst-instancethecase). that this court (Sofia At Regional in Court didnot give themopportunity.an The law requires interviewan withthe adult Although the adult and his guardian were present and wanted toexamination an ordered. witnessand was speak,heard first was hearing Duringa the the judge review the guardianship arrangement, leading to an appeal in August to 2006. refused court The 2006. July and April between hearings three There were at the Sofia Regional Court. lawyer filedan application for a review ofthe a adult,guardianship the on and guardian the with meetings guardianship. Following several hisinterests. This was unusual:the guardian wanted to apply for a review ofthe with Intellectual Disabilities in Podgumer, Sofia Region, he was ableHomeinterests.directorAdultsfortheownguardian,theof Accordinghis to to look after reasonsforguardianship were epilepsy apparenthisand inability fortocarehis RegionalCourt in Sofia. as a temporary guardian. Mr VP escaped from the home and was living homelessguardianship. In the meantime a mayor’s orderprosecution ahis thereview procedureinitiate lifting appointed and for office to refused the director of the home knownreason) againstalsocommenced.Mr VP However, theinvestigator died
Case N. 86 N. Case 8 June 2007 the case was still pending before the Sofia Court of Appeals. 5 /200 1 7-page-long incapacity assessment prepared by a psychiatrist and a 30 1 1 . onapplication bytheSofia Regional Prosecutor’s Office. The 1 an adultan wasput under plenary guardianship by the Sofia 1 0 and light intellectual 1 3 February 2006 - human rights and guardianship in bulgaria 109 . In the same year he was placed in the Pastra Social Social Pastra the in placed was he year same the In . 1 960 and placed under plenary guardianship by the Sofia guardianship plenary under 960 and placed 1 3 December 2005, the NGO lawyer sent a letter to Mr KN’s guardian, and and guardian, KN’s Mr to letter a sent lawyer NGO the 2005, December 3 1 975 and was not able to perform any kind of work because of his ‘personality of his ‘personality because any kind of work to perform and was able 975 not pension. Eighty percent of the adult’s income went to the institution was as as fees, it to the institution went but income of the adult’s home, percent Eighty the pension. and adult the between contract services social the in specified asked never had guardian The used. was percent twenty other the how clear not estate of freehold. The guardian sold the house and bought another one in Sofia. Sofia. in one another bought and house the sold guardian The freehold. of estate had adult the and guardian the but house, new the use to KN Mr right has the behaviour, aggressive adult’s the of was afraid guardian The together. lived never lands agricultural had also adult The house. the use to right his denied products never but collected guardian the which from cooperative, agricultural an to rented adult’s was the using home the how idea no had The guardian sums. small and to her guardianship duties. guardianship her to Haskovo in house their to title the transferred parents KN’s Mr died, they Before care take to obliged was guardian the contract, the to According guardian. the to she house, the sold guardian KN. the If Mr son, their and them support and of toupset was shehis obliged Further, in one Sofia. to another buy was obliged of the adult’s illness. In summary, he had had a diagnosis of schizophrenia since since schizophrenia of a diagnosis had had he summary, In illness. adult’s the of alcohol. of because 1 aggressive was he that stated report the Further, degradation’. he although Municipality, inwasfile Haskovo kept the guardianship Mr KN’s in was residence of place his and Rila) of (municipality Home Pastra the in lived relation in municipality the to reports submitted never had guardian The Pastra. who would visit him. The Pastra Social Care Home wrote a report about Mr Mr KN about report a wrote Home Care Social Pastra to The him. loved visit events, would of who kinds all in participated finances. remission, his long a in manage was he and that time stating leisure his organise to able was and chess, play On history the outlining documents presented guardian the 2005 20 December on Care Home. His guardian – the wife of the adult’s cousin – lived in Sofia and did did and Sofia in lived – cousin adult’s the of someone wife the with – guardian guardian His the Home. Care replace to wanted KN Mr him. with touch in keep not mental ability could be mobilised’. that The theexpertsman concluded could ability be mental could mobilised’. actions. his for responsibility limited bear Mr Mr KN was in born Regional Court in February 200 February in Court Regional
Case 5: Mr KN Mr 5: Case adult, and never reported to the guardianship authority, but took advantage of the advantage took but authority, to the guardianship reported and never adult, property. adult’s the duties of a guardian. Often they have a financial interest in being a guardian, for for guardian, a being in interest financial a have they Often guardian. a of duties the is an The casebelow property. adult’s the to heirs are they potential when instance, in or any care interest of for the a example guardian who had demonstrated never There are cases in which the guardians are not close relatives, but on paper perform perform paper on but relatives, close not are guardians the which in cases are There 110 mental disability advocacy center Mostof the adults under guardianship and their guardians interviewed by MDAC’s of professionals working in the guardianship system. the depths of the problems inherent in it, and the Interviewsoften assisted entrenchedMDAC’s understanding stigmatisingoftheguardianship viewssystem Bulgaria,in 3 adults. vulnerable of potentially protection the ensure to duty: basic most their in fail thus and controlguardians not do authorities Guardianship duties. their out carry to in guardian and the obliging else, someone appointing and guardian the displacing in guardianship, cases partial to plenary from The changing in fail. difficulty the invariably illustrate also above cases described the strategies, different with experiments who lawyer bono pro a provides NGO an when Even guardianship. the of review a for exist In tonopeoplesummary, seek mechanisms undereffective guardianship guardianship unless it is totally clear to him/her what guardianshipunderplaced is shouldbe about’.one MDAC,‘Notoldguardianship underadultAnother my guardian was and what I could do to get rid of the guardian.’ placedin a home and the director explained it to me, I still did not understand who There was no one I couldask. Even later when Iasked guardianship, about somemy ID adultscard told or MDAC,why I‘I under was didwere nottheydiscovered thatknowthey guardianship. whatAfter of guardianship aims isand about.nature the of MDACawarewhomadultsinterviewedprocedure. thewascourt None of the MDAC’sresearcher, ofbecause opinion oftheir condition the orbecause communicate;theywere innervous about to able not guardianship were Many where place. takeproceedings courtrooms outside adults other met researcherMDAC’s meant and whether this was why they lived in a social care institution. thesubject, some adults expressed surprise, askingthe researcher what guardianship did not know that they were underresearcher guardianship.reported When problemsMDAC’s with researcherguardianship. mentionedAdults under guardianship commonly
.11 3 3 0 02 3 the guardian care better for KN in the community. toSofia municipality,asking them to provide community-based services to help Mr KN’s lawyer prepared letters to the Ministry of Labour and Social Policy and never explained to the guardian what her obligationsHaskovo municipality guardianship office at had were.the and aboutthis, KN Mr
Interviews neve wt a a i Psr Sca Cr Hm fr e wt Mna Dsres 6 2006. September 25 man, Disorders, 28-year-old a with Mental Interview with Men for Home Care 200 Social December Pastra in man a with Interview 5 . 302 303 Some human rights and guardianship in bulgaria 111
306 Another judge judge Another 0 1 3 However, Bulgarian law Bulgarian However, 305 . . 5 5
May 200 May 200 304 Some guardians told MDAC that they they that MDAC told guardians Some 31 31 308 6 June 2006. 6 June 2006. 1 1 Another guardian told MDAC, ‘I was advised to place her her place to advised was ‘I MDAC, told guardian Another 307
309 Interview Regional inVarna Court on Interview in Stara Zagora Regional Court on Interview in Stara Zagora Regional Court on 22 May 2006. Interview in Stara Zagora Regional Court on Interview Regional inVarna Court on Director of Lyaskovo social care home for adults with intellectual disability, 20 June 2005. social care home for adults with intellectual disability, Director of Lyaskovo See, for example, Guardianship and Human Rights in Hungary, Mental Disability Advocacy Advocacy Disability Mental Hungary, in Rights Human and Guardianship example, for See, 2007. Center,
make their own decisions just because they had never decided on anything before before anything on decided never had they and because home, just the decisions outside own life their of make aware not are they now But here. admitted were they institution.’ the outside live to them for difficult more even be would it ‘These people were thrown away from society a long time ago. They are not able to able not are They ago. time long a society from away thrown were people ‘These 7 4 0 0 08 09 0 3 3 3 31 3 305 306 to have their family member placed under guardianship. One judge talked about a talked about judge One guardianship. under placed member family their to have them’. Iunderstand life. ahard live people ‘These said, and relative need we course of But hear. we cases the on training have not do ‘We that, admitted it among the children’. the among it apply who relatives towards sympathetic are judges that impression the gained MDAC under guardianship because they did not want to give me her pension or integration integration or pension her me give to want not did they because guardianship under documents’. any without more any welfare divide or property their sell to needed they ‘because procedure guardianship started following, as one guardian told MDAC’s researcher: ‘I was advised to place him under under him place to advised was ‘I researcher: MDAC’s told guardian one as following, was this and alcohol on money his all spent and lot a drank he because guardianship him’. save to way only the The overwhelming majority of guardians of people who live in the community do ofwhoinlive of guardians thepeople community majority overwhelming The the as such opinions hold typically They guardianship. of nature the understand not
However, one institutional director told MDAC’s researcher: researcher: MDAC’s told director institutional one However, of residents of their social care institution. In most cases, institutional directors do directors In cases, most institutional of social their care institution. of residents rights. human exercising from adult the depriving as guardianship conceptualise not Bulgaria does not have so-called professional guardians. professional so-called have guardians not does as Bulgaria appointed be to institutions residential of directors allow wrongly, does, health) disabilities. Curiously, relatives are frequently unaware of why the guardianship guardianship the why of unaware frequently are relatives Curiously, disabilities. health) relatives tell Judges official. relationship the make to prefer but needed, is procedure person. the of care take will who decide to is case the of purpose the that it is good because she buys everything I need’. I everything buys she because good is it (mental psycho-social or disabilities intellectual with adults of care take relatives Often said, ‘I want to make my own decisions things about my everyday life, but my mother mother my but One life, decisions. everyday in that they to the court wanted make told researcher my autonomous about things decisions own my make to want hand ‘I other said, the on But cannot. simply I this of because and money the of charge in is people with psycho-social (mental health) disabilities whom MDAC’s researcher met met researcher MDAC’s whom disabilities health) (mental psycho-social with people 112 mental disability advocacy center guardianship cases neither important nor interesting. interviewed,considersayingtheybe tosentiment, refused mostthisbecause share none of us have this fate’. researcher,theselifepeopleawful anlive.just ‘WhatcannotIeven imagine it. Let In one case, after the relatives and the adult left the room, a prosecutorA toldprosecutor MDAC’s was amazed to see an adult placed under guardianship in the courtroom. a review of guardianship. None could remember any. MDAC’s researcher asked about the number ofas acases life-time judges deprivation had dealt ofwith rights, concerning and seemed only to starthas thinkingrevealed, about did this not when control) guardians’ actions. Judges todo notsee conceivehow guardiansguardianship were appointed and real-lifehow the consequences authority of controlledguardianship. None(or had as everthisnot visitedthinkthiswould report help athem understand’.guardianship authority to explain to them what is going on, but the law does not requirethought it and I honestlyabout do an ex officio lawyer for thebe legallyadults. represented It is true during that the thereguardianship should process,implications be one someone judgeof guardianship. answered, When MDAC’s‘I have researchernot askedHowever, whether adultsjudgesfrequently shoulddemonstrated lowunderstandinga humantheofrights court cannot be an expert in everything’. forjudges, justifyingthelack ofanytraining on these issues by asserting that, ‘The examination’. to know more about these people’s problems, although this is why we usually order an to challenge the notion of guardianship itself. for adults under guardianship to challenge evidence presented in the courtroom,legislation and urgently needs tobeamended, andthat opportunities need tobecreated Atthe same time the few lawyers who represented adults thought that guardianship with those people’. interest of adults: ‘Look how much suffering he adultbrings while to in hiscourt. Onefamily. lawyer told I MDACreally empathise that guardianship is clearly in the best Usually the lawyers did not know the adult in question nor didirreversible adultwasneededtheytheimmediate that deprivationtry and to capacity. talklegal ofto the Lawyersof applicants usually tried to convince the court that the person’s condition 315 314 313 31 311 2
Interview in Stara Zagora Regional Court on 22 May 2006. May 22 on Court Regional Zagora Stara in Interview Interview in Lovech Regional Court on 22 May 2006. May 22 on Court Regional Lovech in Interview on Court Varnain Regional Interview on Court Varnain Regional Interview on Court Varnain Regional Interview 3 11 A third judge became defensive when asked about the lack of training 3 1 5
3 1 4 MDAC is not able to state whether prosecutor colleagues 1 1 1 6 June 2006. June 6 2006. June 6 2006. June 6 3 1 2
3 1 3 Judges seemed tobeoblivious tothe human rights and guardianship in bulgaria 113 Conclusions 2 .1 Neither courts nor guardianship offices make any serious effort to ascertain the adult’s adult’s the ascertain to effort the serious who any told make not offices is guardianship adult nor the courts cases many Neither In be. should guardian the who about opinion Such Such an fails approach abilities, individual to the take person’s into consideration potential. and needs interests, a mere formality. In other cases, the incapacity assessment fails to link the condition condition the link to fails assessment incapacity the cases, other In formality. mere a incapacity Many affairs. own their of care take to ability her or his with adult the of amount to assessments nothing more than such as statements ‘this has person an guardianship’. plenary to needs be under placed so obviously disability, intellectual Medical Medical and other experts receive no guidance on how to In assessments. carry some cases, adults with mostly concerning disabilities, intellectual out incapacity are assessments these cases some In all. at out carried not are assessments incapacity reveals the urgent need for judicial training on the nature of disability, how to address address to how disability, of nature the on training judicial for need urgent the reveals guardianship. of consequences the on and disabilities, with people Adults in question on the whole do not participate in the guardianship procedure, in procedure, the with guardianship do participate on not the whole in Adults people question to talk judges which in manner The once. only court the by seen are and fair of trial It and also the about equality parties. rights raises questions disabilities or her life. There is no legislative obligation to do so, so other people take decisions for for decisions take people other so so, do to obligation legislative no is There life. her or consent. or knowledge person’s that without adult, the During During both his in bring the would guardianship court changes what adult and the to language the understandable administrative procedure, no one explains in needs of humanity, and probably violates the United Nations Convention on needs of the and the violates Convention Nations humanity, United probably Rights of with Certainly States. Persons it Disabilities. has European for devastating other consequences many in and Bulgaria in people of thousands many legislation is outdated, and follows a binary and illogical theory that people are either either are people that theory illogical and binary a follows and outdated, is legislation or Normal Ill or healthy. or helpless. Helpful or unable. Able or incapable. capable and differences individual the account nottake doesinto Thisapproach abnormal. to help them understand the information and take appropriate action. Furthermore, Furthermore, action. appropriate take and information the understand them help to which protection, of principles underlying the satisfies from far legislation Bulgarian presumably is the underpinning of philosophy guardianship. This is so because under guardianship as well as lack of information about the nature and effects of the the of effects and nature the about information of lack as the well as from stem guardianship under abuses other Many problems. main the among be to proved procedure representation legal denied and information, vital denied are simply adults that fact It It is clear that meaningful participation of Lack guaranteed. oftheis notification adults of proper adults insufficiently to placed in be the guardianship process fails to meet international human rights standards. It is hoped that It is is this hoped research standards. rights human fails to international meet as country the society civil and government Bulgarian the to contribution a helpful practice. and law guardianship of reform needed urgently an on embarks This research of guardianship practice in Bulgaria adds the human side to conclusions conclusions to side human the adds Bulgaria in practice guardianship of generally research This legislation guardianship Bulgarian that namely report, the in earlier reached 3 114 mental disability advocacy center 900 lv. (approximately 450 euros) is paid. MDAC believes that this information information this that MDACbelieves paid. lv. 450(approximatelyis euros) of900 sum a if only available information that make and guardianship, about data is troubling ofthe attitude government the central itEqually that hide publiccan and recommendations based upon these conclusions is clear. to assess accurately. The impact ofthese constraints on conclusionsofficers) that in the system can interacted, be drawn and the impact thatof interaction,was impossible members,witnesses,familyjudges,layguardianshiplawyers,authority andexpert of their work. The manner in whichall participants (e.g. people underguardianship, combination of legislation and practice suggests inadequate monitoringgenerally, legislationandas oversighttofailsensure adequate supervision ofthose authorities, morethis Second,and cases.guardianshipauthorities withwhich deal in manner the honoured,troubling.is Firstpictureitensuredfull couldanotobtainedthat be of basisof confidentiality, despiteassurances that confidentially would be appropriatelyMore specifically,the guardianship authorities’ denial of access totheir case files on the health) and intellectual disabilities. international legal and moral obligations towards its peoplemeet to fail withcontinue to psycho-socialwill (mentalupon, Bulgaria research acted findings the such and allowed is Unless addressed. be should that be to weaknesses practice also good but of identified, instances allow will This research. future in participate and co-operate encourage, governmentto Bulgarian the urges thereforeMDAC been by those responsible for implementing such legislation and Unfortunately,policy. inthis instance research wasnot facilitated muchas itas might have address. MDAC’s research is only the first step towards reachingthat understanding.basedupon,is informed and by,thorough a understanding issuestheoftoitseeks Governmentsshould notembark onlegislative orpolicyreform unlesssuchreform 3 take care of adults under guardianship. officials are content relyto the on (often glaringly wrong) assumption that relatives their work or to ensure the highest possible controlsserviceworkguardianshipofthe officials, generally responsibilitythey for feel no vulnerable for adults. Guardianship guardianshipofitssevere andconsequences people.on Sincenationalno authority responsible in law to ensure the protection of vulnerable adults – lackbureaucratic understandinga indealtwith way.be guardianship Many– peopleofficials are who Guardianshipoffices of local authorities consider guardianship as another burden to of the need for whole-scale reform. shehasmade. The often impenetrable wall of bureaucracy is yetanother illustration orextremely difficult to find that out who guardian the is, and what decisionshe or guardian is. In some cases, even with the assistance of an attorney it is either impossible .1 3 General Comments and the the and Comments General N eed for Further Research Further for eed human rights and guardianship in bulgaria 115 - - rather than later make a commitment to sign, ratify and implement this important important this implement ratify and sign, to commitment a make than later rather document. international ries ries of the on UNthe Rights with Convention A Disabilities. of principal People alter implement to countries upon anis obligation this Convention of component will sooner that the Bulgarianhopes government MDAC guardianship. to natives accept their conclusions as scientific truth. truth. scientific as conclusions their accept As of the date of of this publication report, Bulgaria was not among the signato and a judge’s decision. In order for Bulgarian citizens to be assured that their justice justice their that assured be to citizens Bulgarian for order In decision. how judge’s a and into needed is research more considerably non-arbitrary, and objective is system automatically almost judges why and assessments, incapacity carry out psychiatrists effective participation by lawyers, and the role of psychiatrists. These professionals have have professionals These psychiatrists. of of guardians, the the lack role of role of the authorities, meaningful guardianship and the and lawyers, by participation effective opinion is as a a link psychiatrist’s there and between direct clear power, enormous require more detailed analysis. Perhaps the most pressing of these include the training training the include these As of guardianship touches pressing so most many the different areas of Perhaps life, severalanalysis. additional issues detailed more require feelings feelings of in participants the the guardianship system. have interviews However, further that suggest and groups, bythese faced difficulties many highlighted clearly needed. is experiences direct their into research of freedom information.of of is MDAC that conscious this research only the touched surface of the views and should should be freely available, and any denial constitutes a violation of the principle 116 mental disability advocacy center Mental health problemhealthMental Mental disability Guardianship Guardian Intellectualdisability Capacity Adult of Glossary A NNEX can includepeoplecanpersonality withdisorders. population Members this ofare have been diagnosed, labelled or perceived as suffering from a mental illness,and as having, mental health problems and/or intellectual disabilities. No. R(99)4. referenced by the Council of Europe Committee as ‘substituteof Ministers decision-making.’ in Recommendation Guardianship is one form of ‘protectivemakedecisions measure’ onhisor her behalf. Guardianship sometimesalsois referred to partiallyor (eithercompletely) capacity legal requisitetomakepersonal decisions the and lackthe person appointed to deemedto person a betweenprocess lack capacity. legislationtoact inthiscapacity onbehalf of persona who beenhas deemed to relative,professionalaother personanyorauthorized guardian undernational a be may guardian dependingjurisdictionThe thecase.onof and/or type the welfare. The appropriate entity guardianship eithermay be court a agency, or a the place of a person who lacks legal capacity to handle his or her own affairsand MDAC has elected to use ‘intellectual disability’ in lieu of all such terms. ‘imbecile,’ ‘abnormal comprehension,’ ‘idiocy,’ may‘weakbe outdated mind’ and pejorativeand so on).(for example, Therefore,terms such ‘mentalas retardation,’ literal translations into English from the national‘mentalproblem’phrasehealth thebelow), languages(seeHowever, instead.with the ofas our target countries degrees.andSomecountries‘learningtermdisability’ thetypes usevarying of terms ‘capable’ and ‘competent’ are frequently used interchangeably.appreciate theconsequences ofthedecision andcommunicate thedecision. The mental state – the ability to the requisitehave understandshe binding, must effect, actionsor havelegalahe thattake the decision presented, consider alternatives, – as defined inthe jurisdiction wherethe person is located. : An adult is a person who has reached the legal age of majority – usually age : A legal term embodying the notion that for a person to make decisions and A :Aguardian isindividualan appointed by the appropriate entity to act in A ea rltosi etbihd hog a or o administrative or court relationship a established through legal A : T erminology : A term applied to people who have been diagnosed with, or labelled :This phrase refers to people who have intellectual limitations : An admittedly broad term meant to includepeopletowhomeantadmittedly broadterm An : 1 8 human rights and guardianship in bulgaria 117 : Type : of Type established guardianship : : This to alternative guardianship is premised on the : Type of guardianship established when a when is person : of established deemed guardianship Type : : Although its meaning specific will be definedin inlaw, terms,general a : The term commonly used in English-speaking countries to refer to a person toa person torefer countries in English-speaking used commonly : term The in other jurisdictions (including, for example, Bulgaria), it is used only for certain certain for only used is it Bulgaria), example, for (including, jurisdictions other in incapacity. partial of cases in as such relationships, dehumanises it as term this use to not prefers MDAC guardianship. under is who concerned’. ‘person or ‘adult’ use simply we Instead, individual. the fact that with proper support, a person who might otherwise be deemed to lack lack to deemed be otherwise might who a person support, proper with that fact decisions. personal make to able fact, in is, capacity In person. to another relationship a fiduciary maintains who is a trustee person but guardian, with interchangeably used is ‘trustee’ term the jurisdictions, some to to lack or capacity completely lack capacity to sufficient take any actions on of form is the encompassing his guardianship most or Plenary own her behalf. guardianship. when a person who has some capacity to make decisions or take action on his or or his on action take or decisions make may to or capacity may some has who person person a a when What capacity. partial have to deemed is and behalf own her a is guardianship partial under when to herself or himself country for do to from allowed be not varies and decide, to courts and/or legislation national for matter country. same the within or country sometimes referred to as having a ‘mental disorder,’ ‘mental disease’ or ‘mental or disease’ ‘mental ‘mental to health as referred disorder,’ having a sometimes ‘mental ‘mental as translated are terms such all report, this of purposes For defect’. stigmatising. less is maintains MDAC term a problem’, Ward Trustee Supported decision-making Supported Plenary Plenary guardianship Partial Partial guardianship limited (or guardianship) 118 mental disability advocacy center S A ummary ummary NNEX Indicator 4 Indicator 3 Indicator 2 Indicator Indicator Indicator 9 Indicator 8 Indicator 7 Indicator 6 Indicator 5 Indicator Indicator Indicator B T 1 1 able of the Indicators the of able 0 the wishes and feelings of the adult are considered. are adult the of feelings and wishes and the criteria objective on based is guardian a of Selection adult. the of interests the serves and evidence sufficient upon based is incapacity of finding A decisions. independent make to inability alleged the and diagnosis underlying the between link demonstrable a requires incapacity of finding A evaluation. in-person an including information, objective recent, upon based and professional qualified a by conducted evaluation, capacity a of subject the being without capacity legal of deprived is adult No (witnesses). evidence opposing the challenge to and witnesses), (including evidence own his/her present to opportunity and right the has adult An capacity. legal her or his of evaluation to an subjected be to order in detained be not may adult An proceedings. guardianship throughout representation legal effective and free to right a has adult An guardian. a of appointment and capacity legal her or his of deprivation for application the to related proceedings all at heard and present be to and notice, actual to right a has adult An it. support to needed foundation the and guardian a of appointment for application an make may who identifies clearly legislation The disabilities. mental with people of freedom fundamental and dignity rights, human the for respect encompasses law the to preamble or purpose Legislative human rights and guardianship in bulgaria 119 about major decisions, and have his/her wishes adheredto whenever possible. The scope of authority and obligations of the guardianare clearly defined and limited to those areas in whichthe adult subject to guardianship needs assistance. 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 right to marry, to found a family, and to respectfamily of life. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exerciseright the to associate. A person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. An adult subject to guardianship must be consulted political rights. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exerciseright the to work. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exerciseright the to property. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise The guardian should not have a conflict of interestthe with adult, or the appearance of such a conflict. An adult has the right to appeal a finding of incapacityand/or the appointment of a guardian. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise 2 3 1 6 8 4 7 9 5 1 1 1 1 1 1 1 1 11 Indicator 2 Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator Indicator 20 Indicator 120 mental disability advocacy center Indicator 29 Indicator 28 Indicator 27 Indicator 26 Indicator 25 Indicator 24 Indicator 23 Indicator 22 Indicator modification and/or termination of the guardianship. the of termination and/or modification request to right the has guardianship to subject adult An appropriate. as long as only continues and reviewed periodically is Guardianship of capacity. degrees varying the address and involved person of the needs individual the to tailored are Guardianships is imposed. guardianship a before exhausted demonstrably are available and are guardianship to alternatives restrictive Less omissions. or acts of guardian’s review triggers that exists procedure complaint A decisions. all for accountable held is guardian the and body objective an by reviewed periodically are decisions guardian’s A periodically. adult the with confer and visit to obliged is guardian The guardianship. under adult the benefits that a manner in adult the of assets the manage must guardian The human rights and guardianship in bulgaria 121 -
rotection of Research Data P C articipants P NNEX rotocol for Researchers on than than the actual research data and will be only to available the and researcher the member. staff MDAC assigned information (including any (including information personal notes, records or other that information) is gathered from any source, by any means, the throughout course of the location research in awill besystem maintained different keyThetonumerical the project. Protection of collected information collected of Protection Each researcher must devise a data number-based storage system to protect the directed towards improving the well-being of people under guardianship as well as guardianship under of people the well-being improving towards directed guardianship. under placed be to likely people Maintenance and Maintenance use of the data from collected during individuals the empirical and stage of will the by be project an staffprotected andoverseen member MDAC the is assigned data collected the of use that ensure to board, advisory guardianship Oversight by MDAC MDAC by Oversight This approach informs the collection and handling of information by MDAC. by information of handling and collection the informs approach This Handling Personal Data less intrusive research involving vulnerable human beings as subject-participants as human as beings subject-participants vulnerable involving research less intrusive well-being the to related ‘considerations society.’ that states and Declaration the science of 5 of Article well. interests the over precedence take should subject human the of The World Medical Association Declaration Of Helsinki: Ethical Principles for Med for Principles Ethical Helsinki: Of Declaration Association Medical World The applying specifically while 2000), (Revised Subjects Human Involving Research ical for guidance provides also subjects, human on research medical to principles ethical guardianship. Gathering of data in this manner is necessary to fully understand and and understand fully to necessary is manner this in data of Gathering guardianship. it. by affected those by system guardianship the of reality the document frameworks on adults under guardianship. Researchers will attempt to hold interviews interviews hold to on attempt will the practical and application Researchers the of implications guardianship and guardianship. legislation under adults on frameworks to related processes court through going are who or guardianship, under adults with P Introduction information isto gather research of stage the intwo purpose the Theguardianship A and 122 mental disability advocacy center research participant, the researcher must inform each participant of the following:researcher. Because ofthis possibility, the before from researchera assistance begins for interviewan with ask a specifically who participants encounter research may and little contact with the outside world, it is possible,Recognising that ifindividuals not who probable,reside in closed thatinstitutions researchersoften have few visitors Participants to Disclosures Required the researcher to keep such information confidential oranonymous. participant is at substantial risk of significant harm,that it maythe participant not be discloses possible (or for the researcher observes) informationresearcher that mustsuggests explain theto participants that if during the course of the interview confidentiality/anonymity.Exceptionsto interview,Before conductingany the present, unless requested and authorised additional personby the no participant. with and others, of earshot confidential of manner, out and private a conducted in be conditions. interviewing must Interviews The identifiable information or statement will be included inany publishedthat, if includedreport. in the published report, it will be anonymous; i.e., nothat personally the information eventually may be disclosed researcherin MDAC’s and by publishedMDAC in reporta confidentialand themanner.maintained bybe participant willinformation share anychoosesatoIt that should further be explained The confidentiality of research data. Researchers must explain toparticipants that mitted to provide legal advice or representation to research participants.researcher’s role is one of information gatheringthe participantsresearcher.that the and Researchersto explain should that of role The the researcher is not per be deleted from project records. refuses or withdraws consent, all information pertaining toindividual that an individualproject.If themust in use informationfor personal of recording the to and research the in participatingconsentstoshe or whether participanthe potential each ask directly must Researchers time. withdraw any at to participating orfrom question) particular any answer to refuse to (or participate to refuse to right the have Individuals research. the of nature voluntary The the needs of each individual participant. and benefits in a languageand formatthat is both comprehensibleparticularattention and mustpaid providingtailoredtobe explanationan to ofpotential risks ficulty comprehendingthe potential risksand benefits The ofpurposethe research.of participating Consideringthat many participants in may have dif research, - - human rights and guardianship in bulgaria 123
member to discuss the situation. situation. the discuss to member guardian, MDAC staff).thenguardian, should to MDAC The ask forpermission researcher specific to any Before the that or disclosure disclose information people agency staff identified. MDAC responsible the contact must researcher the made, is information the of exact nature of the assistance sought. The researcher must discuss with the participant participant the with discuss must researcher The sought. assistance the of nature exact what precisely would information need to be the disclosed (including name and lawyer, example, (for and to whom diagnosis) facts, relevant the of person, location related to the request be lost as it would require disclosure to a third party who could could who party third a to disclosure require would it as lost be request the to related assistance, wants participant the this disclosure, following If, assistance. the the provide understands clearly participant the that ensure to steps take should researcher the The researcher must note to the participant that the researcher’s role is as researcher only only researcher as is role researcher’s the that participant the to note must information any researcher of The anonymity the that require would assistance for request a that and the project as soon as possible to discuss how to proceed. Non-emergency requests by by requests Non-emergency proceed. to how discuss to handled possible as be soon as should project other) the or (legal assistance for researcher the of participants research basis. case-by-case a on the harm. Exercising his or her own judgment, the researcher must decide whether whether decide must the researcher his own judgment, or her the Exercising harm. as detail much as gather person, in staff for or police notify to responsible imminent member staff sufficiently is it MDAC the contact then and situation the about possible during the course of the interview or otherwise, the researcher must again inform the the inform again must researcher the otherwise, or interview the police, as of (such course the authority during or person(s) appropriate an notify to need the of participant who can to director) or stop intervene institution authority governmental relevant Significant Harm If a makes participant suggesting a disclosure risk substantial of harm significant Procedure Following Disclosure Suggesting a Substantial Risk of 124 mental disability advocacy center L A ist of Interviews of ist NNEX 1 1 3 1 1 3 3 1 1 1 22 May 2006 May 22 2006 May 22 2005 June 20 2006 September 25 2005 December 6 Date 20 June 2005 June 20 2006 June 20 2006 March 29 2006 March 29 2006 March 29 2006 May 22 2006 May 22 7 September 2006 September 7 1 1 1 6 June 2006 June 6 2006 June 6 2006 June 6 2006 June 6 2006 June 6 0 May 2005 May 0 May 2005 May 2005 May 2005 May D Guardian, director of social home social of director Guardian, guardianship under Person guardianship under Person guardianship under Person Interviewee under guardianship under placed be to adult the of Lawyer guardianship under placed be to adult the of Lawyer guardianship under placed be to adult the of Lawyer lifted was guardianship whose persons 2 Judge home social of director Guardian, Psychiatrist Psychiatrist lawyer Applicant’s Prosecutor Judge Judge Judge member family Guardian, member family Guardian, psychiatrists 2 member family Guardian, 1 0 adults under guardianship under adults 0 human rights and guardianship in bulgaria
125
If change, explain what type of change was sought: sought: was change of type what explain change, If
. 5 I-9 Plenary guardianship ______, Partial guardianship ______. Change of guardianship ______. ______. guardianship of Change ______. guardianship Partial ______, guardianship Plenary
Initial application filed sought to establish: establish: to sought filed application Initial
Requested guardian was also the applicant: Yes ______, No ______. No ______, Yes applicant: the also was guardian Requested
(specify ______) (specify
. 4 Family member ______, Professional Guardian ______, Director of Institution ______, Other ______Other ______, Institution of Director ______, Guardian Professional ______, member Family I-9
as guardian to the Adult in question: question: in Adult the to guardian as
Yes ______, No ______; if not, what was the relationship of the person that the applicant asked to be appointed appointed be to asked applicant the that person the of relationship the was what not, if ______; No ______, Yes
Did the applicant ask for him or herself to be appointed guardian: guardian: appointed be to herself or him for ask applicant the Did
______. Other (specify) ______. (specify) Other ______.
. 3
Community ______, Social care home or other State institution ______. (specify the type of institution) institution) of type the (specify ______. institution State other or home care Social ______, Community
At initiation of case, person concerned was living in: in: living was concerned person case, of initiation At
Ethnicity of person concerned: ______. Not Available: _____ Available: Not ______. concerned: person of Ethnicity
Year of birth of person concerned: ______. ______. concerned: person of birth of Year
Gender of person concerned: Male / Female. / Male concerned: person of Gender 2.
Date of court finding: ______. ______. finding: court of Date
Regional court the case file is from: ______, ______, from: is file case the court Regional
. 1 Case file identifying number: (based on researcher’s own numbering system). system). numbering own researcher’s on (based number: identifying file Case
box
ator
Data Gathering Sheet for Individual Case File (Court) Reviews (Court) File Case Individual for Sheet Gathering Data tion tion
Indic-
Ques-
E NNEX A 126 mental disability advocacy center
Outcome of case was court order for: 6. I-9 Plenary guardianship ______, Partial guardianship ______, No guardian ______. Change of guardian ______.
7. I-7 Capacity evaluation was ordered: Yes ______, No ______. Person was ordered to be detained in order to complete capacity evaluation: Yes ______No ______Information Not Available:______Person already detained for other reasons I-2 8. (explain):
If person was detained in order to submit to capacity evaluation, how long were they detained: ______(in days). File indicates proof of written notice of proceedings to person involved: 9. I-3 Yes ______No ______. Amount of time between when written notice was served and the proceeding: ______(in days) Person concerned was present at the initial court hearing: Yes ______No ______Not Available ______. 10. I-3 Person concerned was present at any subsequent court hearings: Yes ______No ______Not Available ______. If no, what reason is provided (if any) for the absence of the person concerned: Person concerned was represented by an attorney during the proceedings: Yes ______No ______. 11. I-4 If no, person concerned was represented by any third-party: Yes ______No ______If yes, specify type of third party (i.e. case guardian): The person representing the person concerned made any arguments or asked any questions of any witness during the proceedings: Yes ______No ______. 12. I-4 The person representing the person concerned supported the application for guardianship: Yes ______No ______. human rights and guardianship in bulgaria
127
Yes ______, No______. ______, Yes
Is there any indication in the court file that the person concerned agreed to be placed under guardianship: guardianship: under placed be to agreed concerned person the that file court the in indication any there Is
Is there any indication in the court file that the person concerned agreed to be incapacitated: incapacitated: be to agreed concerned person the that file court the in indication any there Is Yes ______, No ______. No ______, Yes
6. 1 I-3
Yes ______, No ______. ______. No ______, Yes
Is there any indication in the court file that the person concerned objected to being placed under guardianship: guardianship: under placed being to objected concerned person the that file court the in indication any there Is
______. ______.
Is there any indication in the court file that the person concerned objected to being incapacitated: Yes ______, No ______, Yes incapacitated: being to objected concerned person the that file court the in indication any there Is
If yes, specify what type of other evidence was presented (i.e. witnesses): witnesses): (i.e. presented was evidence other of type what specify yes, If
I-5 . 15 Person concerned presented other evidence: Yes ______No ______. No ______Yes evidence: other presented concerned Person
Person involved presented an alternative capacity evaluation: Yes ______No ______. ______. No ______Yes evaluation: capacity alternative an presented involved Person
If yes, what other evidence was presented to court: court: to presented was evidence other what yes, If
Other evidence or witnesses was presented in court in addition to capacity evaluation: Yes ______No ______. No ______Yes evaluation: capacity to addition in court in presented was witnesses or evidence Other
. 14 I-5
Yes ______No ______. Not Available: ______. Available: Not ______. No ______Yes
Person who conducted the capacity evaluation appeared in court in person: person: in court in appeared evaluation capacity the conducted who Person
If no, reason given for person not receiving the capacity evaluation in advance of court hearing: court of advance in evaluation capacity the receiving not person for given reason no, If
. 13 I-5 Not Available:____. Not
If yes, how long before the court hearing did person involved receive capacity evaluation: ______(in days). days). (in ______evaluation: capacity receive involved person did hearing court the before long how yes, If
The capacity evaluation was provided to the person concerned in advance of the court hearing: Yes ______No ______. No ______Yes hearing: court the of advance in concerned person the to provided was evaluation capacity The 128 mental disability advocacy center
Does file indicate whether notice of the court decision was sent out to the person concerned:Yes ______No ______.
If yes, how long after the court decision was the notice sent out: ______(in days) Not Available: ______. 17. I-6 Does file indicate whether the person involved was told of their right to appeal the capacity decision:Yes ______No ______.
Was an appeal filed in this case: Yes ______No ______. If yes, who filed the appeal: Does the case file contain a written capacity evaluation: Yes _____ No _____. If yes, how many pages is the evaluation: ______
According to the case file, did the evaluator have a face-to-face meeting with the person concerned: Yes ______No ______. Not available ______. If yes, how long was the meeting: ______(you may need to look for a billing invoice from the evaluator in order to answer this question)
Number of days (or months) old the capacity evaluation was at the time of the capacity hearing: ______.
Was any additional mental health information/evaluation that was provided to the court: Yes ______No ______18. I-7 Not Available ______. If yes, explain what kind of information was used by the court and how old that data was at the time of the hearing:
Does the capacity evaluation provide a diagnosis: Yes ______No ______. If yes, what diagnosis is given: ______. Is the given diagnosis included in ICD 10: Yes ______No______.
Does capacity evaluation explain HOW the diagnosis affects the person’s capacity: Yes ______No ______. If yes, please explain how the capacity evaluation makes this link: human rights and guardianship in bulgaria
129
Yes ______No ______Prosecutor did not participate ______. ______. participate not did Prosecutor ______No ______Yes
Did prosecutor agree with the recommendation of the capacity evaluator: evaluator: capacity the of recommendation the with agree prosecutor Did
I-10 . 3 2
Did court’s decision agree with the recommendation of the capacity evaluator: Yes ______No ______. ______. No ______Yes evaluator: capacity the of recommendation the with agree decision court’s Did
other reason is given, explain the reason: reason: the explain given, is reason other
others ______, Compliance with ministerial orders ______, Other reason ______. If If ______. reason Other ______, orders ministerial with Compliance ______, others
______, Financial ______, Protection of person concerned ______, Protection of of Protection ______, concerned person of Protection ______, Financial ______,
According to the case file, the court’s stated reason for entering a finding of incapacity was: Placement in institutional care care institutional in Placement was: incapacity of finding a entering for reason stated court’s the file, case the to According
If yes, what areas (types) of decisions are reserved for the individual: ______(list examples): examples): (list ______individual: the for reserved are decisions of (types) areas what yes, If
I-10 22.
______No ______. ______. No ______
For Partial cases, the court identified particular areas where the individual could retain their own decision-making powers: Yes Yes powers: decision-making own their retain could individual the where areas particular identified court the cases, Partial For
If no, what reason was given for not entering a finding of incapacity: incapacity: of finding a entering not for given was reason what no, If
be: Partial ______, Plenary ______. ______. Plenary ______, Partial be:
Did court enter a finding of incapacity in this case: Yes ______No ______. If yes, the incapacity was found to to found was incapacity the yes, If ______. No ______Yes case: this in incapacity of finding a enter court Did
______, Other reason ______. If other reason, please explain what reason was provided for the filing of the application: the of filing the for provided was reason what explain please reason, other If ______. reason Other ______,
Protection of person concerned ______, Protection of others______, Compliance with ministerial orders ____ orders ministerial with Compliance others______, of Protection ______, concerned person of Protection
. 1 2 I-10
Financial management ______management Financial
According to the case file, what reason was provided for the need for guardianship: Placement in institution ______, ______, institution in Placement guardianship: for need the for provided was reason what file, case the to According
If other person was given notice describe how that person was related to the case or the person concerned: concerned: person the or case the to related was person that how describe notice given was person other If
Not Available: ______Available: Not
I-9 20.
Social care home (director) ______Other person ______. ______. person Other ______(director) home care Social
In this case, notice of the application was provided to: Family member ______, ______, member Family to: provided was application the of notice case, this In
If other, what was the applicant’s relationship to the person concerned: concerned: person the to relationship applicant’s the was what other, If
______
9. 1 I-9
Family member ______, Social care home (Director) ______, Prosecutor ______Other ______Other ______Prosecutor ______, (Director) home care Social ______, member Family In this case, the applicant was: was: applicant the case, this In 130 mental disability advocacy center
Ques- tion Indic- Data Gathering Sheet for Individual Court Observations box ator Case file identifying number: (based on researcher’s own numbering system). 1. Total length of court hearing: Gender of person concerned: Male / Female. 2. Year of birth of person concerned: ______. Ethnicity of person concerned: ______. Regional court the case file is from: ______, Date of court observation: ______. Type of court hearing (purpose): ______. Have there been any previous court dates for this case: Yes ______No ______. If yes, how many and for what purpose(s):
Who is present in court: Person concerned: Yes ______No ______If no, why not: 3. If no, was person informed of court hearing: Yes ______, No ______, Not sure ______.
Attorney or representative for person concerned: Yes ______No______. Prosecutor: Yes ______No ______Applicant: Yes ______No ______Attorney for Applicant: Yes ______No ______Capacity evaluator: Yes ______No ______Others: (identify their role such as ‘witness for applicant’, ‘family member’, ‘friend’)
At initiation of case, person involved was living in: 4. Community ______, Social care home or other State institution ______. Other ______. human rights and guardianship in bulgaria
131
The person representing the person concerned supported the application for guardianship: Yes _____ No ____. ____. No _____ Yes guardianship: for application the supported concerned person the representing person The
witness during the proceedings: Yes ______No ______. No ______Yes proceedings: the during witness
The person representing the person concerned made arguments or asked questions on behalf of the person involved to any any to involved person the of behalf on questions asked or arguments made concerned person the representing person The
0. 1 I-4
Yes ______No ______If yes, specify type of third party (ie case guardian): case (ie party third of type specify yes, If ______No ______Yes
If no, person concerned was represented by any third-party: third-party: any by represented was concerned person no, If
Person concerned was represented by an attorney during the proceedings: Yes ______No ______. ______. No ______Yes proceedings: the during attorney an by represented was concerned Person
provided (if any) for the absence of the person concerned: concerned: person the of absence the for any) (if provided
Person concerned was present at any subsequent court hearings: Yes ______No ______If no, what reason is is reason what no, If ______No ______Yes hearings: court subsequent any at present was concerned Person
Person concerned was present at the initial court hearing: Yes ______No ______. ______. No ______Yes hearing: court initial the at present was concerned Person
I-3
9. Amount of time between when written notice was served and the proceeding: ______(in days) days) (in ______proceeding: the and served was notice written when between time of Amount
Yes ______No ______. ______. No ______Yes
File indicates proof of written notice of proceedings to person involved: involved: person to proceedings of notice written of proof indicates File
If person was detained in order to submit to capacity evaluation, how long were they detained: ______(in days). (in ______detained: they were long how evaluation, capacity to submit to order in detained was person If
Person already detained for other reasons: ______. ______. reasons: other for detained already Person
I-2 8.
Person was ordered to be detained in order to complete capacity evaluation: Yes ______No ______. ______No ______Yes evaluation: capacity complete to order in detained be to ordered was Person
Capacity evaluation was ordered: Yes ______, No ______No ______, Yes ordered: was evaluation Capacity
Plenary guardianship ______, Partial guardianship ______, No guardian ______guardian No ______, guardianship Partial ______, guardianship Plenary
. 7
Outcome of case was order for: order was case of Outcome
explain what type of change was sought: sought: was change of type what explain
6. Plenary guardianship ______, Partial guardianship ______. Change of guardianship ______. If change, change, If ______. guardianship of Change ______. guardianship Partial ______, guardianship Plenary
Initial application filed sought to establish: establish: to sought filed application Initial
Requested guardian was also the applicant: Yes ______, No ______. No ______, Yes applicant: the also was guardian Requested
. 5 (specify ______) (specify
Family member ______, Professional Guardian ______, Director of Institution ______, Other ______Other ______, Institution of Director ______, Guardian Professional ______, member Family Person that the Applicant requested to be the guardian was: was: guardian the be to requested Applicant the that Person 132 mental disability advocacy center
The capacity evaluation was provided to the person concerned in advance of the court hearing: Yes ______No ______.
11. I-5 If yes, how long before the court hearing did person involved receive capacity evaluation: ______(in days).
If no, reason given for person not receiving the capacity evaluation in advance of court hearing: Person who conducted the capacity evaluation appeared in court in person: Yes ______No ______.
The capacity evaluator submitted a written report of his/her findings:Yes ______No ______.
12. I-5 Person concerned was given a copy of the capacity evaluation: Yes _____ No _____. If yes, when (ie at court hearing or in advance of court by ______days):
Other evidence or witnesses was presented in court in addition to capacity evaluation: Yes ______No ______. If yes, what other evidence was presented to court: Person involved presented an alternative capacity evaluation: Yes ______No ______. Person concerned presented other evidence: Yes ______No ______13. I-5 If yes, specify what type of other evidence was presented (i.e. witnesses): Was the person concerned asked their opinion about being incapacitated/placed under guardianship: Yes ______, No ______. 14. I-3 Is there any indication in the court file that the person concerned agreed to being placed under guardianship: Yes ______, No ______. human rights and guardianship in bulgaria
133
If yes, please explain how the capacity evaluation makes this link: link: this makes evaluation capacity the how explain please yes, If
Does capacity evaluation explain HOW the diagnosis affects the person’s capacity: Yes ______No ______. ______. No ______Yes capacity: person’s the affects diagnosis the HOW explain evaluation capacity Does
0 diagnosis: Yes ____ No _____. If yes, what diagnosis is given: given: is diagnosis what yes, If _____. No ____ Yes diagnosis: 0 1 ICD an provide evaluation capacity the Does
If yes, explain what kind of information was used by the court and how old that data was at the time of the hearing: the of time the at was data that old how and court the by used was information of kind what explain yes, If
______.
Was any additional mental health information/evaluation that was provided to the court: Yes ______No ______Not available available Not ______No ______Yes court: the to provided was that information/evaluation health mental additional any Was
6. 1 I-7..8
Number of days (or months) old the capacity evaluation was at the time of the capacity hearing: ______. . ______hearing: capacity the of time the at was evaluation capacity the old months) (or days of Number
answer this question) question) this answer
If yes, how long was the meeting: ______(you may need to look for a billing invoice from the evaluator in order to to order in evaluator the from invoice billing a for look to need may (you ______meeting: the was long how yes, If
According to the case file, did the evaluator have a face-to-face meeting with the person concerned: Yes ______No ______. ______. No ______Yes concerned: person the with meeting face-to-face a have evaluator the did file, case the to According
If yes, how many pages is the evaluation: ______evaluation: the is pages many how yes, If
Does the case file contain a written capacity evaluation: Yes ______No ______. No ______Yes evaluation: capacity written a contain file case the Does
If yes, who filed the appeal: appeal: the filed who yes, If
Was an appeal filed in this case: Yes _____ No ______. ______No _____ Yes case: this in filed appeal an Was
Yes ______No ______. ______. No ______Yes
No ______. If yes, was the person concerned given any information as to HOW to as information any given concerned person the was yes, If ______. No they would file an appeal: appeal: an file would they
Was the person concerned told that he/she has the right to file an appeal of the court’s decision: Yes ______Yes decision: court’s the of appeal an file to right the has he/she that told concerned person the Was
I-2..6 . 15
questions was the person concerned asked: asked: concerned person the was questions
Was the person concerned asked any questions by the judge during the proceeding: Yes ______No ______. If yes, what what yes, If ______. No ______Yes proceeding: the during judge the by questions any asked concerned person the Was
summarize what rights the person was informed of: of: informed was person the rights what summarize Was the person concerned told what their rights are during the proceedings: Yes ______No ______. If yes, yes, If ______. No ______Yes proceedings: the during are rights their what told concerned person the Was 134 mental disability advocacy center
In this case the applicant was: 17. I-9 Family member ______, Social care home (Director) ______, Prosecutor ______Other ______If other, what was the applicant’s relationship to the person concerned: In this case, notice of the application was provided to: 18. I-9 Family member ______, Social care home (director) ______Other person ______. If other person was given notice describe how that person was related to the case or the person concerned: According to the application to court, what reason was provided for the need for guardianship: Placement in institution ______, Financial management ______Protection of person concerned ______19. I-10 ______, Protection of others ______, Compliance with ministerial orders ______, Other reason ______. If other reason, please explain what reason was provided for the filing of the application: Did court enter a finding of incapacity in this case: Yes ______No ______. If yes, the incapacity was found to be: Partial ______, Plenary ______. If no, what reason was given for not entering a finding of incapacity:
For Partial cases, the court the court identified particular areas where the individual could retain their own decision-making 20. I-10 powers: Yes ______No ______. If yes, what areas (types) of decisions are reserved for the individual: ______(list examples):
According to the case file, the court’s stated reason for entering a finding of incapacity was: Placement in institutional care ______, Financial ______, Protection of person concerned ______, Protection of others ______, Compliance with ministerial orders ______, Other reason ______. If other reason is given, explain the reason: Did court’s decision agree with the recommendation of the capacity evaluator: Yes ______No ______. 21. I-10 Did prosecutor agree with the recommendation of the capacity evaluator: Yes ______No ______Prosecutor did not participate ______. human rights and guardianship in bulgaria
135
What reason was given for appointing someone other than the person requested to be guardian: guardian: be to requested person the than other someone appointing for given was reason What
(i.e. what is that person’s relationship to the person concerned): concerned): person the to relationship person’s that is what (i.e.
Requested guardian was appointed the guardian: Yes ______, No ______. If no, who was appointed guardian guardian appointed was who no, If ______. No ______, Yes guardian: the appointed was guardian Requested
I-11 . 4
_ (specify ______) (specify _
Family member ______, Professional Guardian ______, Director of Institution ______, Other ______Other ______, Institution of Director ______, Guardian Professional ______, member Family
The person that the applicant requested to be appointed guardian was: was: guardian appointed be to requested applicant the that person The
If no, how long has the person been incapacitated with no guardian appointed: ______(in days or months). or days (in ______appointed: guardian no with incapacitated been person the has long how no, If
. 3
Yes ______No ______. If no, the reason provided in the file that no guardian has been appointed: appointed: been has guardian no that file the in provided reason the no, If ______. No ______Yes
Does the person concerned have a guardian appointed: appointed: guardian a have concerned person the Does
______. Date of court order finding incapacity: ______incapacity: finding order court of Date ______.
2.
Regional guardianship authority where the case file is from: ______, Date guardian was appointed: ______appointed: was guardian Date ______, from: is file case the where authority guardianship Regional
Case file identifying code (based on researcher’s numbering system): ______system): numbering researcher’s on (based code identifying file Case . 1
box
ator
Data Gathering Sheet for Individual Case File (Guardianship authority) Reviews authority) (Guardianship File Case Individual for Sheet Gathering Data tion tion
Indic-
Ques-
If yes, who filed the appeal: appeal: the filed who yes, If
Was an appeal filed in this case: Yes ______No ______. ______No ______Yes case: this in filed appeal an Was
______. ______.
22. I-6 Does file indicate whether the person involved was told of their right to appeal the capacity decision: Yes ______No No ______Yes decision: capacity the appeal to right their of told was involved person the whether indicate file Does
If yes, how long after the court decision was the notice sent out: ______(in days) days) (in ______out: sent notice the was decision court the after long how yes, If
______. ______. Does file indicate whether notice of the court decision was sent out to the person concerned: Yes ______No ______No ______Yes concerned: person the to out sent was decision court the of notice whether indicate file Does 136 mental disability advocacy center
Was person concerned seen personally (ie: interviewed/consulted) by the guardianship authority prior to appointment of the guardian: Yes ______No ______. If no, what reason was given for the person concerned not being seen (interviewed or consulted) by the GA:
If yes, was the person concerned asked who they would want to be their guardian: Yes ______No ______. If yes, was the appointed guardian the same as the person concerned said they wanted: Yes ______No ______. If no, what reason was 5. I-16 given for appointing someone other than who the person concerned wanted:
If person was seen personally by GA, was the person concerned informed of what it would mean for them to be placed under guardianship (i.e. what residual rights the person concerned has – if any): Yes ______No ______. What rights were they informed of:
If person was seen personally by GA, was the person concerned asked to express their opinion about any (other) issue relating to the proceeding: Yes _____ No _____. If yes, what issues was the person concerned asked for their opinion:
Does there appear to be a conflict of interest between the person concerned and the person appointed guardian: Yes ______, No ______. 6. I-12 If yes, what is the nature of the conflict of interest: Financial ______, Director of facility where person involved resides ______, Other ______, If other, describe what ‘other’ conflicts or potential conflicts you note from the file: Has this case ever undergone a case review by the GA: Yes ______No ______. If yes, how many: ______7. I-20 ______How much time elapsed between each review: human rights and guardianship in bulgaria
137
______. If no, reason given (if any) for lack of review: review: of lack for any) (if given reason no, If ______.
. 11 I-27
Has the need for guardianship ever been re-evaluated by the GA: Yes ______No ______. If yes, how long ago: ago: long how yes, If ______. No ______Yes GA: the by re-evaluated been ever guardianship for need the Has
If yes, what was the nature of the request (ie: financial, medical etc.): etc.): medical financial, (ie: request the of nature the was what yes, If
I-20 0. 1
guardianship: Yes ______No ______. No ______Yes guardianship:
Has the guardian ever contacted the guardianship authority for permission to take any action regarding the person under under person the regarding action any take to permission for authority guardianship the contacted ever guardian the Has
Was person under guardianship interviewed/asked for input on/during the review: Yes ______No ______. ______. No ______Yes review: the on/during input for interviewed/asked guardianship under person Was
Financial situation/transaction involving the assets of the person under guardianship: guardianship: under person the of assets the involving situation/transaction Financial
Medical situation/treatment of person under guardianship: guardianship: under person of situation/treatment Medical
I-20 9.
Living situation of person under guardianship: guardianship: under person of situation Living
If yes, what was purpose of the review: the of purpose was what yes, If
______at what frequency (i.e. every year/every five years): ______. years): five year/every every (i.e. frequency what at ______
Has there ever been a review of the guardian’s actions/decisions in this case: Yes ______, No ______. If yes, how many: many: how yes, If ______. No ______, Yes case: this in actions/decisions guardian’s the of review a been ever there Has
Was there a review of the guardianship/guardians actions as a result of the complaint: Yes ______, No______. ______, Yes complaint: the of result a as actions guardianship/guardians the of review a there Was
If not investigated, what reason was given for no investigation: investigation: no for given was reason what investigated, not If
If investigated, what was the outcome: outcome: the was what investigated, If
I-19 8.
investigated ______, investigated
If there has been a complaint filed, what action was taken as a result: Complaint investigated ______, Complaint not not Complaint ______, investigated Complaint result: a as taken was action what filed, complaint a been has there If
reason: reason: Have any complaints ever been filed against this guardian: Yes ______No ______. If yes, how many: ______For what what For ______many: how yes, If ______. No ______Yes guardian: this against filed been ever complaints any Have 138 mental disability advocacy center lae dniy ls) ht ttsia ifrain eadn guardianships/mental regarding information statistical what (list) identify Please General disability statistics for country (by region if possible): Data Gathering Sheet for Statistical Information 6. 2. 1 General Country (Regional) Statistics disability is available and explain the manner in which it is kept. 5 4 3 . . . . guardian is responsible: ______. guardian is responsible: ______. professionaleachwhomforguardianship Averagepeople under of number Over 10-30 people: ______6-10 people: ______2-5 people: ______1 Number of guardians responsible for: ______. Total number of people under guardianship of directors (or staff) of institution: Total number who reside in an institution: ______. Total number of those people who reside in community: ______. Total number of people under guardianship of professional (public) guardian: ______Total number of people under guardianship of relative (family) guardian: Other ______Homeless ______Living with relative (family) guardian ______Living with friends ______Living with family ______Living alone ______Other institutions ______Psychiatric institutions ______Social care homes ______in the country (by region if possible): Current living arrangement (total number of cases) of Total Plenarypeople Partial______. Guardianship______Guardianship______under guardianship Number of persons under guardianship in the country who are in: Female ______Male ______if region (by country possible): the in guardianship under people of ageAverage Total Female ______. ______Male______Numberof persons under guardianship in the country (by region if possible): person: ______3 0 people: ______33 2 human rights and guardianship in bulgaria 139 Plenary (male) ______Plenary (male) ______Plenary (female) Partial (include number of months) Plenary (male) ______Plenary (give number of months included): Partial ______Partial ______Plenary included): months of number (give : Partial ______Partial : ______Plenary : Partial ______Partial : ______Plenary 4 4 5 5 4 999: Partial ______Partial 999: ______Plenary 99 Number of cases examined where person was under: under: was person where examined cases of Number Guardianship______Partial Guardianship______Plenary Number of cases examined Total ______Total examined cases of Number ______. ______Men Women of of Number Number examined: was case whose persons of age Average ______Male ______Female (female) ______(female) Partial ______(male) Partial ______(female) ______. Total 200 ______(male) ______. (female) Partial Total If so, are they broken down into any smaller categories such as by full or partial partial or full by as such categories smaller any into down broken they are so, If guardianship? age? diagnosis, gender, region, by Or person the of death than other reasons for terminated guardianships of Number guardianship: under 200 Does this apply to all guardians? guardians? all to apply this Does average)? (on paid they are much How them? pays Who initiated are cases guardianship many how on statistics ‘official’ any there Are year? each In In those countries where directors of institutions are routinely guardian appointed of their residents we should try information regarding the to etc. financinginterest gather of of conflict statistical/budgetary institutionsfinancial is so there that whether/where we can show services? their for paid guardians Are Number of applications filed for new guardianships: new for filed applications of Number 200 200 1 1 . 2. 0. . 11 1 GAP Research Statistics: Refer to all cases examined as part of Stage Two research Two Stage of part as examined cases all to Refer Statistics: Research GAP 1 9. 8. 7 140 mental disability advocacy center 13 14 . . directors (or staff) of institution: ______. of guardianship under was person where examined cases ofTotal number ______. Totalnumber of those cases examined where person resides in an institution: ______Total number of those cases examined where person resides in community: professional (public) guardian: ______. of guardianship under was person where examined cases ofTotal number relative (family) guardian: ______of guardianship under was person where examined cases ofTotal number Other ______Homeless ______Living with relative (family) guardian ______Living with friends ______Living with family ______Living alone ______Other institutions ______Psychiatric institutions ______Social care homes ______guardianship: Current living arrangement (total number of cases examined) of people under human rights and guardianship in bulgaria 141 -
What is your opinion of the existing guardianship system in your country? country? your in system guardianship existing needed. the of when only opinion used your is Ie: What degree? appropriate the to utilized system the Is (ex involved? person the to fair capacity determining for procedures Are plain) Interviewee: Interviewee: country? your in system Professionals guardianship existing needed. the of when only opinion used your is Ie: What degree? appropriate the to (explain) utilized involved? system the person Is the to fair capacity determining for procedures Are Concerned Person Suggested questions for interviews with participants in the the in participants with interviews for questions Suggested proceedings guardianship
Indicator
Indicator Indicator 1 ponding ponding Corres- Number of years person has been under guardianship: ______guardianship: under been has person years of Number interviewee: the of background diagnosis, history, health Mental ______. ______, Institution in: lives Interviewee ______,Community ______Other (specify). Interviewee’s experience with the Interviewee’s guardianship processes ‘is (ie: under guardianship’ application’): guardianship a of subject the ‘was guardianship’ under once ‘was Identification Code forIdentification Interviewee (pursuantto your own system confidential which ______participants): research of identity protects Interviews with Person Concerned: Person with Interviews ______Interview: of Location and Time Date, Number of years person has been involved in guardianship cases: ______cases: guardianship in involved been has person years of Number estimate of how Interviewee’s many guardianship cases has he/she been in: involved ______interviewee: the of background Training/educational protects identity of research participants): ______participants): research of identity protects Role of Interviewee in ‘professional guardianship ‘prosecutor,’ processes (ie: ‘judge,’ ______. guardian’): Interviews with Professionals: with Interviews ______Interview: of Location and Time Date, Code forIdentification Interviewee (pursuantto your own system confidential which ended ended questions meaningexamples that for they ask are and designed to elicit a narrativepossible) if response. Listen recorder data a (using carefully answers the record and possible. when opinions of elaboration and Question and Answer Sheet for Interviews with Professional Participants in Participants Professional with Interviews for Sheet Answer and Question Processes Guardianship the Many of the questions suggested for the quasi-formal interview process are open- 142 mental disability advocacy center
Indicators Indicator 3 Indicator 2 4 & 5 with you before court? If someone did represent you during the proceedings, did that person meet Would you have liked to have a lawyer to represent you? during the proceedings? If not, did you have anyone (such as a ‘case guardian’) represent yourDid interestyou have a lawyer to represent you during your case? (why or whyDid not) you know you had the right to have a lawyer to represent you? Person Concerned friends/family etc.) (or their representative)? (ie alternative capacityWhat kind exam,of evidencewitnesses suchis most as likely to be presentedIs it bycommon thefor personthe person concernedconcerned to present ‘a case’ on their own behalf? guardianship proceedings? Is there/should there be a system to provide free lawyers to people facing resent them during the proceedings? In your experience, how often does the person involved have a lawyer to rep to be represented by a lawyer? (why or why not) Is it important/necessary for the person involved in guardianship proceedings Professionals Interviewee: If yes, who told you and what did they say? court? Did someone tell you should come to court or that you should not come to Did you want to be present at court? (why or why not) cerns you? Did you know that you have the right to be presentIf yes, howat didevery you courtfind out?date that con capacity and needed a guardian? Did you know that there was going to be a hearing to decide whether you had Person Concerned and every hearing or court date? (why or why not) Is the presence of the person concerned important and/or necessary at each Professionals Interviewee: Were you asked whether you wanted to participate in being examined? Was a capacity examination ordered in your case? (why or why not) Person Concerned tion in order to have a capacity exam completed? Under what circumstances (if any) should a person be detained in an institu Are capacity exams always ordered in process?capacity determinations? (why or whyWhat is thenot) purpose/importance of capacity evaluations in the guardianship Professionals Interviewee: - - - human rights and guardianship in bulgaria 143 - -
Person Concerned Person How is the connection between a person’s diagnosis and whether they have have they whether and diagnosis person’s a between connection the is How report service social any that require court the does (ie: determined? capacity impaired is ability person’s the how of illustrations provide to submitted be condition?) mental their to due information/training adequate have judges and lawyers most that feel you Do their of care take to capacity person’s a to relates diagnosis a how ascertain to affairs? own Have you received, or do others in your position receive, special training on on training special receive, position your in others do or received, you Have etc? information/diagnoses health mental of meaning and use the Concerned Person Interviewee: Professionals Interviewee: Interviewee: Professionals capacity? determine to evidence important most the is believe you do What decision?) the make to on rely most judge the does what words, other (in would that information other any there is evaluation’ ‘capacity the than Other determination? capacity a making in judge a for helpful be information? of kind what yes, If If yes, how did you know about this right? right? this about know you did how yes, If case? your in decision court’s the of notice receive you Did notice? the receive you did when and how yes, If not) why or (why case? your in appeal an file you Did the of choice the with agree you did you, for appointed was guardian a If guardian? How many appeals have there been, or how often are they filed? they are often how or been, there have appeals many How have usually they do or themselves for appeal the file usually person the Does appeal? the file to lawyer a filed? not are appeals more that think you do Why Concerned Person case? your in appeal to right the had you that know you Did Interviewee: Interviewee: Professionals the of appeal an filed concerned person the where case any of aware you Are finding? capacity court’s yes: If Did your representative present any witnesses, documents, reports or other other or reports documents, witnesses, any present representative your Did behalf? your on court the to information hear your during had you that help/representation the with satisfied you Were not) why or (why ing? ob you Whether (ie case? the in wanted you result want you ask anyone Did guardian) or incapacitation to ject
5 & 4
Indicator 8 Indicator Indicator Indicator 7 Indicator 6 Indicator Indicator s Indicator 144 mental disability advocacy center
Indicator 11 Indicator 10 Indicator 9 above)? Why did the judge not have that information (the information described If yes, give examples: before making a decision? In your case, was there information that you thought the judge should know Person Concerned lose in terms of their individual rights once incapacitated? When making the decision, do judges consider what the person involved will problems? What risks are involved in not incapacitating a person with mental health What is usually is the reason that cases are dismissed? How often are cases dismissed without a finding ofincapacitation? guardianship? Who benefitsthe mostfrom incapacitating a personand placingthem under best decision? Do you believe that judges usually receive adequate information to make the incapacitated? (what should they consider when (Formaking theOthers) decision?) How should judges decide whether a person should be (explain) (For Judges) How do you decide whether a person should be incapacitated?Professionals Interviewee: (explain) Why do you think that an application was filed to appoint aguardian for you? Person Concerned guardian? What do you think is the most important result of the appointment of a for guardianship? (ie financial reasons, protectionWhat of is person the mostor otherscommon etc.) reason, in your opinion, forProfessionals applicants to file requests Interviewee: What qualities do you think make for a good guardian? If yes, was the person you wanted made your guardian? (why or why not) guardian is going to be appointed? Have you ever been asked who you would want to be your guardian if a Person Concerned guardian? (explain why or why not) Should the person involved have the right to choose who will be their decision be based upon? If more than one person wants to be the guardian of a person, what should the (explain) What qualities do you think make a person a good (appropriate) guardian? Professionals Interviewee: human rights and guardianship in bulgaria 145
Have you ever disagreed with a decision that your guardian has made for or or for made has guardian your that decision a with disagreed ever you Have you? about Person Concerned Person yourself? for of charge in be to like most you would life your of areas What yourself for make to allowed be should you think you that decisions there Are decisions? those make guardian your having than rather they? are what so, If Who prevented you from doing so? so? doing from you prevented Who Interviewee: Professionals to allowed be should guardianship under person a that decisions any there Are themselves? for make decisions? what so, If not? why not, If If not, why not? not? why not, If Concerned Person prevented were you which rights exercise to tried or to wanted ever you Have guardianship? under are you because exercising from do? to want/try you did what so, If Interviewee: Interviewee: individual an Professionals to consent ever) you would (or ever you Have Guardians) (For guardian’s with exercised be only can that rights economic or social exercising consent? explain: please yes, If If not, why not? not? why not, If Concerned Person prevented were you which rights exercise to tried or to wanted ever you Have guardianship? under are you because exercising from do? to want/try you did what so, If so? doing from you prevented Who Interviewee: Interviewee: individual an Professionals to consent ever) you would (or ever you Have Guardians) (For guardian’s with exercised be only can that rights political or civil exercising consent? explain: please yes, If Interviewee: Interviewee: Professionals person a prevent should or would that interest of conflict a constitutes What examples) (give guardian? a as acting from Concerned Person
Indicator Indicator 15 Indicator Indicator 14 Indicator Indicator 13 Indicator Indicator 2 1 146 mental disability advocacy center
Indicator 20 Indicator 19 Indicator 18 Indicator 17 Indicator 16 under guardianship? If so, what are they? Are there any decisions that a guardian is not allowed to make for the person Describe the extent of a guardians’ authority: Professionals nterviewee: Person Concerned and how is investigation done?) If so, how are complaints investigated? (ie who is responsible for investigatingIs there a mechanism for complaints about a guardian? Professionals Interviewee: What happens if you don’t have what you need? for example? Who is responsible for making sure that you have enough food and clothing, What is your understanding of what your guardian’s job is? Person Concerned How does that guardian get discovered? ship? What happens to a guardian who fails to provide for a person under guardian sities of the person under guardianship? Do you accept that a guardian is responsible for providing all the basic neces Professionals Interviewee: If yes, what can you do? guardian has made on your behalf about your life? Are you aware of any way in which you can challenge a decision that your Person Concerned Professionals Interviewee: Do you feel that your guardian listens to your wishes/opinions? (explain) If so, what kinds of things has your guardian asked you about? Does your guardian ever ask you what you think/want? Person Concerned making a decision (a major decision) about their life? Why or why not?(For Guardians) Do you consult the person under guardianship when you are If the person under guardianship should not be consulted, why not? What weight should the person under guardianship’s opinion be given? sulted about? If so, what kinds of decisions should the person under guardianship be con some decisions before the guardian makes a decision? Do you think that the person under guardianship should be consulted about Professionals Interviewee:
- - - human rights and guardianship in bulgaria 147
Are all guardians given the same authority and decision-making power over over power decision-making and authority same the given guardians all Are guardianship? under people the determined? authority guardian’s a of extent the is how not, If Do you know how your money is spent? spent? is money your how know you Do assets your how on reports or accounts any you show ever anyone Does used? being are (property) guardianships) partial utilize which countries (For Interviewee: Professionals Does the guardian have to report to anyone about how the assets are used/are assets the how about anyone report to to guardian the Does have spent? happen? reporting this does often how so, If Concerned Person you? to belongs that property or money any have you Do it) manages (who it? of care takes who so, If Person Concerned Person ever you have guardian, a had you’ve Since institutions) in living those (For (explain) institution? the of outside lived Interviewee: used? guardianship under Professionals person the of assets) (financial property the is How Interviewee: Interviewee: Professionals guardian, (ie, live? should guardianship under person the where decides Who etc.) psychiatrist family, institution an from person the moved has who guardian a known you Have community? the into Person Concerned Person regularly? guardian your see you Do guardian? your see you do often How need? or want you what about you ask guardian your does so, If need)? or (want say you what to listens guardian your that feel you Do Interviewee: Interviewee: Professionals under person the visit to guardian a for important is it think you Do periodically? guardianship guardianship? under person not? why the or to Why talk and visit guardians most do often How IIn reality, how often are the decisions of a guardian reviewed by someone someone by reviewed guardian a of decisions the are often how reality, IIn authority)? guardianship the as (such else Concerned Person for job good a doing is guardian your think you if you asked ever anyone Has you? asked who yes, If you?
Indicator 2 Indicator 4 Indicator 2 Indicator Indicator 22 Indicator 3 Indicator 2 Indicator 1 Indicator 20 Indicator 148 mental disability advocacy center
Indicator 28 Indicator 2 7 Indicator 26 Indicator 2 5 Indicator 2 4 changed? If so, what did you want changed? How would you go about getting it all together? Have you ever wanted to have your guardianship changed somehow or ended Person Concerned partial guardianships? How often are guardianships changed from partial to plenary or plenary to Who usually initiates applications for termination of guardianship? restored to their full capacity? How often are guardianships terminated and the person under guardianship Professionals Interviewee: you still need a guardian? If so, how often? To your knowledge, has your case ever been reviewed to determine whether reviewed by anyone else to determine if they are good decisions or not? To your knowledge, are the decisions that your guardian makes for you ever Person Concerned What is the purpose of guardianship reviews? authority? How often are (should) guardianship cases be reviewed by the guardianship Professionals Interviewee: Person Concerned disabilities? (explain) Should guardianship be a first response or a last resort for people with mental Professionals Interviewee: If so, what would that be? (ie what kind of help do you think you need?)to live without having a guardian? Do you think that there is some help that you need/want that would allow you Person Concerned How often are alternatives used? What (if any) alternatives to guardianship exist in your region? Professionals Interviewee: able to do on your own without the consent of your guardian? (Persons under partial guardianship) What kinds of things/decisions are you Person Concerned What are the practical differences between partial and plenary guardianships? How are partial guardianships different from plenary guardianships?
human rights and guardianship in bulgaria
149
Court 8 July 05 July 8 05 June 6 available
670/05 no yes
Varna Regional Regional Varna Assessment Assessment attended Not Attended
Court 6 June 05 June 6 05 May 22 available
425/05 no no
Varna Regional Regional Varna Assessment Assessment Attended attended Not
Court hearing 05 June 6
No assessment No 774/05 no no
Varna Regional Regional Varna 1 the after closed Case Attended
st
Court 29 September 05 September 29 05 June 6 available
693/05 no yes
Varna Regional Regional Varna Assessment Assessment attended Not Attended
Court hearing 05 June 6
No assessment No 660/05 no yes
Varna Regional Regional Varna 1 the after closed Case Attended
st
Court 6 June 05, last hearing last 05, June 6 05 May 25 available
/05 11 3 no yes
Varna Regional Regional Varna Attended attended Not Assessment Assessment
Court hearing 05 June 6
4/05 1 7 No assessment No no yes
Varna Regional Regional Varna Attended 1 after closed Case
st
Court 29 September 05 September 29 05 June 6 available
675/05 no yes
Varna Regional Regional Varna Not attended Not Attended Assessment Assessment
Court 29 September 05 September 29 05 June 6
/05 11 4 No data No n no n no
Varna Regional Regional Varna Not attended Not Attended
applicant
number defendant
Court hearing 1 hearing 2 for Assessment
st nd Case Case Lawyer for for Lawyer
Lawyer Lawyer
d ve r se Ob s g n ari e h t r ou C 1 le Tab 150 mental disability advocacy center
Attended 6 June 2005, Not attended Varna Regional 711/05 no hearing, def. not 10 June 05, was held at no data yes no Court able to move defentant’s home
Attended 6 June 05, Not attended Varna Regional 771/05 no hearing, def. not No data yes Yes, ex officio Court noticed 29 September 05 Not attended, Varna Regional 45/05 defendant interviewed Attended Assessment yes no Court at hospital 6 June 05, last hearing available Varna Regional Attended Not attended Assessment yes no Court 817/05 6 June 05 29 September 05 available Attended Varna Regional 694/05 6 June 05, no hearing, Not attended No data No data No data Court no party appeared 78/06 for lifting Varna Regional guardianship Attended Assessment no no Court of a resident 21 July 06 Not attended available in a social care home
Varna Regional Attended Assessment yes no Court 148/06 Not attended 16 June 06, last available
Varna Regional Attended Assessment no no Court 499/06 Not attended 16 June 06, last available
Varna Regional Attended Not attended Assessment yes no Court 950/06 21 July 06 15 September 06 available
human rights and guardianship in bulgaria
151
Court 6 June 06, last 06, June 6 1 available
706/05 1 Not attended Not no yes
Varna Regional Regional Varna Assessment Assessment Attended
Court 8 September 06 September 8 06 July 1 2
844/06 no yes data No
Varna Regional Regional Varna Not attended Not Attended
before the interview the before
Court home of the defendant the of home hearing law, with
840/06 no yes data No
Varna Regional Regional Varna Not attended, was in the the in was attended, Not breach 06, June 6 1
Attended
Court July 06 July 1 2 06 June 6 1 available
797/06 yes yes
Varna Regional Regional Varna Assessment Assessment Attended Attended
Court home 6 June 06, last 06, June 6 1 available
Not attended Not no no
Varna Regional Regional Varna 2/06, 2/06, 1 5 Attended Assessment Assessment
Court home 6 June 06, last 06, June 6 1 available
Not attended Not no no
Varna Regional Regional Varna 0/06, 0/06, 1 5 Attended Assessment Assessment
Court July 06 July 1 2 06 June 6 1 available
/06 1 95 no yes
Varna Regional Regional Varna Attended Attended Assessment Assessment
Court 6 June 06, last 06, June 6 1 available
484/06 Not attended Not no yes
Varna Regional Regional Varna Attended Assessment Assessment
Court 6 June 06, last 06, June 6 1 available
448/06 Not attended Not yes no
Varna Regional Regional Varna Attended Assessment Assessment
Court 6 June 06, last 06, June 6 1 available
386/06 Not attended Not yes no
Varna Regional Regional Varna Attended Assessment Assessment 152 mental disability advocacy center
Attended Varna Regional 2192/05 Not attended 16 June 06 and 3 rd on 21 Impossible yes no Court July 06 assessment Attended Varna Regional 210/06 Not attended 16 June 06, defendant No data yes no Court cannot be found Varna Regional Attended Assessment Court 553/06 Not attended 16 June 06, last available yes no Attended Varna Regional 16 June 06 and 3 rd Assessment Court 724/06 Not attended hearing on 2 1 July 06, available yes no last Assessment not Varna Regional Attended done, lack of yes yes Court 797/06 Not attended 21 July 06 access to the person
Varna Regional Attended Not attended Assessment yes no Court 1121/06 21 July 06 15 September 06 available Assessment Plovdiv Regional 461/06 Not attended Attended, available before yes no Court 18 May 06 the interview Assessment Plovdiv Regional 821/06 Not attended Attended, done before yes no Court 18 May 06 interview Plovdiv Regional Attended, Assessment yes no Court 488/06 Not attended 18 May 06 available
Plovdiv Regional 1038/06 Attended, Assessment yes no Court Not attended 18 May 06 available
human rights and guardianship in bulgaria
153
Regional Court Regional June 06, last 06, June 1 2 06 May 1 3 available
399/06 no no
Stara Zagora Zagora Stara Assessment Assessment Attended Attended
Regional Court Regional June 06, last 06, June 1 2 06 May 1 3 available
359/06 no yes
Stara Zagora Zagora Stara Assessment Assessment Attended Attended
Regional Court Regional June 06, last 06, June 1 2 06 May 1 3 available
357/06 no yes
Stara Zagora Zagora Stara Assessment Assessment Attended Attended
Regional Court Regional assessment 06 June 1 2 06 May 1 3
356/06 no yes
Stara Zagora Zagora Stara Impossible Impossible Attended Attended
Regional Court Regional May 05, last 05, May 1 3 available
Not attended Not 292/05 no yes
Stara Zagora Zagora Stara Assessment Assessment Attended
Regional Court Regional May 05 May 1 3 available
36/05 1 Not attended Not no yes
Stara Zagora Zagora Stara Attended Assessment Assessment
Regional Court Regional 29 June 05 June 29 05 May 1 3 available
35/05 1 no yes
Stara Zagora Zagora Stara Attended Attended Assessment Assessment
Court 22 May 06 May 22 available
52/06 Not attended Not no yes
Lovech Regional Regional Lovech Attended, Assessment Assessment
Court 26 June 06 June 26 06 May 22 available
78/06 no yes
Lovech Regional Regional Lovech Not attended Not Attended, Assessment Assessment
fore interview fore
Court 22 May 06 May 22 26 June 06 June 26
75/06 appointed be- appointed yes no
Lovech Regional Regional Lovech Attended, Not attended Not
Assessment Assessment
Court 8 May 06 May 8 1 available
290/06 Not attended Not yes no
Plovdiv Regional Regional Plovdiv Attended, Assessment Assessment 154 mental disability advocacy center
Tab le ARCHI ve d cou rt ca se fi les on g uardia ns hi p ca ses Rev iew ed
Number of hearings and Lawyer for Lawyer for Court Case number outcome Assessment applicant defendant 888/05 reviewed on 23 2 hearings, 1 person under Stara Zagora Regional Court May 06 plenary guardianship yes yes no 2 hearings, Stara Zagora Regional Court 915/05 2 persons are placed under yes yes no reviewed on 23 May 06 plenary guardianship 1 hearing, Stara Zagora Regional Court 944/05 2 persons are placed under no yes no reviewed on 23 May 06 plenary guardianship 3 hearings, 1 person is Stara Zagora Regional Court 713/05 placed under plenary yes yes no reviewed on 23 May 06 guardianship
686/05 3 hearings, the applicant yes yes no Stara Zagora Regional Court reviewed on 23 May 06 ceased the case
135/05 4 hearings, 1 person placed yes yes no Stara Zagora Regional Court reviewed on 3 1 May 06 under plenary guardianship
838/04 yes yes no Stara Zagora Regional Court reviewed on 3 1 May 06 2 hearings, the case is ceased
534/05 reviewed on 3 1 2 hearings, 1 person is Stara Zagora Regional Court placed under plenary yes yes no May 06 guardianship
human rights and guardianship in bulgaria
155
under plenary guardianship plenary under 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv no yes no
person placed placed person 1 hearing, 1 57/05 1 3
under plenary guardianship plenary under 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv no no no
person is placed placed is person 1 hearing, 1 3094/05
placed under guardianship under placed 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv yes yes yes
person is not not is person 1 hearings, 3 3045/05
placed under guardianship under placed 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv yes yes yes
person is not not is person 1 hearings, 5 4/05 1 30
under plenary guardianship plenary under 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv no yes yes
person placed placed person 1 hearings, 2 /05 1 299
under plenary guardianship plenary under 06 May 8 1 on reviewed
Plovdiv Regional Court Regional Plovdiv yes no yes
person placed placed person 1 hearings, 2 2960/05
guardianship
May 06 May 1 3 on reviewed
Stara Zagora Regional Court Regional Zagora Stara placed under plenary plenary under placed yes no yes
728/05
person is is person 1 hearings, 2
guardianship
May 06 May 1 3 on reviewed
Stara Zagora Regional Court Regional Zagora Stara placed under plenary plenary under placed no no no
364/05
person is is person 1 hearings, 2
guardianship
May 06 May
Stara Zagora Regional Court Regional Zagora Stara placed under plenary plenary under placed yes yes no
2/05 reviewed on 3 on reviewed 2/05 1 5 1
2 hearings, hearings, 2 person is is person 1
guardianship
May 06 May
Stara Zagora Regional Court Regional Zagora Stara placed under plenary plenary under placed yes yes no
585/05, reviewed on 3 on reviewed 585/05, 1
3 hearings, hearings, 3 person is is person 1 156 mental disability advocacy center
3288/05 2 hearings, 1 person placed Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship no no no 3352/05 2 hearings, 1 person placed Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship no no no 3387/05 2 hearings, 1 person placed Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship no yes no 3485/05 2 hearings, 1 person placed Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship yes yes no
185/05 1 hearing, 1 person placed yes no no Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship
237/05 2 hearings, 1 person placed no yes no Plovdiv Regional Court reviewed on 18 May 06 under plenary guardianship human rights and guardianship in bulgaria 157 2/06, etc.). 2/06, 1 0/06, 5 0/06, 1 35/05). 1 /06, 5 /06, 1 Five guardians. Five Expert in Varna Regional Court in June 2006. June in Court Regional Varna in Expert Zagora. Stara in guardianship under placed be to persons Two to in of be guardianship persons Stara under and Zagora placed relatives Four Varna. guardianship). 2006. June in Court Regional Zagora Stara in Expert 359/05, 399/05). 359/05, 2006. June in Court Regional Varna in Prosecutor 95 (case 2006 June in Court Regional Varna in Judge 78/06). Lawyer on side defendants’s in Sofia in June 2006 (only cases for lifting 359/05,399/05). 357/05, 356/05, in Court 2006 May (case Regional in Zagora Stara Prosecutor 75/06, (case 2006 May in Court Regional Lovech in side applicant’s on Lawyer Judge Judge in Stara Zagora Regional Court in May 2006 (case 357/05, 356/05, Judge in Stara Zagora Regional Court in May 2005 (case (case 2005 May in Court Regional Zagora Stara in Judge
.
2. . 0. 1 11 1 8. 9. 4. 5. 7. 3. 6. 2. 1 Interviews 158 mental disability advocacy center
Tab le 3 Gu ardia ns hi p bo di es ( m un ici pa lities) files Age data Age community about wards about Municipality guardianship guardianships guardianships guard. activitiesguard. Signals of misuse of Signals Number of wards of Number wards of Number Number of partial of Number Number of plenary of Number Do they invite ward invite they Do Reports available on available Reports living in institutions in living appointed guardians appointed Availability of guard. of Availability with relatives/spouses relatives/spouses with when decision is made is decision when complains from wards from complains Number of people under under people of Number Number of wards living in living wards of Number
Yes, majority Part of Berkovica1 12 11 1 12 7 5 yes no yes them under 50 report
2 Yes, majority Yes, Blagoevgrad 33 24 9 33 2 31 yes 1 no under 50 written 146, 145, depending Yes, no 3 Yes, majority Burgas 147 117 30 appoint by 16 130 no no on the over 50 template, munic. case written
4 Yes, Byala 2 2 0 2 No data No data yes no no Yes, over 50 written
Letter 4800-35/15 February 2007, mayor of Berkovica municipality. Letter 53-00-28/26 February 2007, mayor of Blagoevgrad municipality. Letter 92B-3/09 February 2007, official at administrative services, Burgas municipality. Letter RD-92.00-14/ 5 February 2007, mayor of Byala municipality.
human rights and guardianship in bulgaria
159
, mayor of Luki municipality. Luki of mayor , 7 200 February 2 1 20/ 1 Letter
2 1
, mayor of Lovech minicipality. Lovech of mayor , 7 200 January 31 / 3 6 3 HP Letter
11
Letter 92-00-174/19 February 2007, mayor of Kurdzhali municipality Kurdzhali of mayor 2007, February 92-00-174/19 Letter .
0 1
Letter 05-00-01/31 January 2007, mayor of Kyustendil municipality Kyustendil of mayor 2007, January 05-00-01/31 Letter .
Letter 92-146/1 February 2007, mayor of Gabrovo municipality. Gabrovo of mayor 2007, February 92-146/1 Letter
Letter 92-K-02/5 March 2007, mayor of Dulovo municipality. Dulovo of mayor 2007, March 92-K-02/5 Letter
Letter 5-00-1/29 January 2007, mayor of Dobrich municipality. Dobrich of mayor 2007, January 5-00-1/29 Letter
Letter 05-02-1/6 February 2007, mayor of Dimitrovgrad municipality Dimitrovgrad of mayor 2007, February 05-02-1/6 Letter .
2 1 11 0 1
social worker social
0 3 under
Luki no yes 0 8 3 the is guardian 0 8 3 8 3 Not yet Not yes
2 1 Yes, majority majority Yes,
6 by munic., munic., by 6 3 2,
necessary
Lovech 1 yes 1 8 0 1 8 13 68 1 8 No data No yes
11 When When
obey
do not not do
munic. 0 5 over
Kurdzhali 3 0 1 13 2 1 1 no no yes guardians guardians
0 1 by by 13 , 13 Yes, majority majority Yes,
reports, reports,
No, some some No,
written
Kyustendil by munic. by 5 8 2 3 8 5 8 2 3 53 no no yes no
9 Yes, Yes,
about partial about munic. 0 5 under written
Gabrovo 11 9 3 0 5 6 3 no no yes
8 by by 5 2 , 5 2 , no data data no , 3 Yes, majority majority Yes, Yes, Yes,
yes
0 5 under
Dulovo by munic. munic. by 74 8 5 6 74 1 6 no no yes 13 template template
7 Yes, majority majority Yes,
No, No,
munic. munic. 0 5 under written
Dobrich 5 2 1 0 14 15 15 5 2 1 no 1 yes
6 9 by by 9 7 0, 14 Yes, majority majority Yes, Yes, Yes,
munic. 0 5 under written
Dimitrovgrad 6 1 6 1 0 2 14 yes no yes
5 , 9 appoint. by by appoint. 9 , 7 Yes, Yes, Yes, Yes, 160 mental disability advocacy center
13 38, 41 by Various Yes, majority Yes, Pazardzhik 48 43 5 munic. 14 34 Yes 1 practice over 40 written
14 50, 58 by Yes, Pernik 70 62 8 munic. 18 52 Yes no yes Yes, 20 to 85 written
15 35 by law, 19 by Yes, majority Yes, Pleven 54 46 8 munic. 0 54 Yes no no over 40 written
Plovdiv, central 3 by law, 25 by Yes, 16 28 22 6 0 28 Yes no no Yes, 23 to 82 financial- region munic. protocol Yes, Plovdiv, Meeting Yes, majority 17 7 4 3 7 0 7 Yes no financial Eastern region at home over 50 protocol Yes, Plovdiv, 6 by law, 46 by Yes, majority 18 63 56 7 43 20 yes no no financial Trakiya region munic. under 50 protocol
19 39, 47 by yes Yes, majority Yes, no Razgrad 47 34 13 municip. 8 39 no no over 50 data
20 No no Yes, majority Yes, how Radnevo 6 5 1 6 by munic. 2 4 data no under 50 not clear 13 14 15 16 17 18 19 20
13 Letter 05-00-1/21 February 2007, Pazardzhik guardianship body. 14 Letter 07/SPU 530/22 February 2007, mayor of Pernik municipality. 15 Letter RD-92-42/14 February 2007, mayor of Pleven municipality. 16 Letter OP10-4865/8 February 2007, mayor of the Central Region in Plovdiv. 17 Letter I70800-92/14 February 2007, mayor of Eastern region in Plovdiv. 18 Letter P7080072/20 March 2007, Trakia region’s guardianship body in Plovdiv. 19 Letter 40-00-5-7/31 January 2007, Mayor of Razgrad municipality. 20 Letter 05001(1)/21 February 2007, mayor of Radnevo municipality.
human rights and guardianship in bulgaria
161
Letter 0700-74/6 March 2007, mayor of Kremikovci region. Kremikovci of mayor 2007, March 0700-74/6 Letter
7 2
Letter RD-07-00-20/8 February 2007, mayor of Krasna Polyana region. Polyana Krasna of mayor 2007, February RD-07-00-20/8 Letter
26
Letter 07-01-29/20 February 2007, mayor of Izgrev region. Izgrev of mayor 2007, February 07-01-29/20 Letter
5 2
, secretary of Silistra municipality. Silistra of secretary , 7 200 March 7 06/ 5 Letter
4 2
Letter 05-00-1-1/15 February 2007, mayor of Septemvri municipality Septemvri of mayor 2007, February 05-00-1-1/15 Letter .
3 2
, mayor of Sevlievo municipality. Sevlievo of mayor , 7 200 February 13 92.29/ Letter
22
, secretary of Ruse municipality. Ruse of secretary , 7 200 February 2 1 8/2/ 4 Letter
1 2
27 26 25 24 23 22 1 2
region
7 2 written 0 5 over cases
Kremikovci Kremikovci no no 6 1 0 6 1 5 11 6 1
Yes, Yes, majority Yes, Some
Sofia, Sofia,
region
26 clear munic. not clear not
Polyana Polyana no yes clear Not 11 54 5 6 Yes, 22 to 80 to 22 Yes, no
Not Not by 3 6 , 5 6 Yes, how how Yes,
Sofia, Krasna Krasna Sofia,
partial
region 0 5 under for yes written
5 2 by munic by 34 , 34 9 5 2 34 5 no yes 29
Sofia, Izgrev Izgrev Sofia, Yes, majority majority Yes, plenary, Yes, Yes,
No for for No
munic. cases written
Silistra 1 35 6 3 7 1 yes 29 No data No
4 2 by by 35 28, Yes, some some Yes, Yes, Yes,
munic. 0 5 under written
Septemvri 2 9 3 41 0 1 31 yes no yes
3 2 by by 41 0, 1 Yes, majority majority Yes, Yes, Yes,
written
Sevlievo 9 by munic. by 9 5 11 80 1 9 9 82 No data No data No no yes
22 Yes, Yes,
documents
financial financial
cases 0 5 under is
Ruse 2 1 54 66 66, 66 66, 3 3 6 no yes copies of of copies
1 2 yes, some some yes, Yes, majority majority Yes,
written, written, Yes, Yes, 162 mental disability advocacy center
Sofia, Lozenec 25, 33 by 7 31 yes 2 No, old Yes, majority Yes, region28 38 28 5 munic. people under 50 written
Sofia, Mladost 7 50 yes yes yes Yes, majority Yes, region29 57 50 7 40 by munic. over 50 written Sofia, Nadezhda 38 31 7 38 by munic. 3 35 yes no no Yes, majority Yes, region30 over 50 written
Sofia, Novi 33, 59 files 40 19 yes no no Yes, majority Yes, Iskur31 region 59 58 1 under 50 written
Sofia, Oborishte 54, 50 by 4 50 yes no no Yes, majority Yes, region32 54 48 6 munic. over 50 written
Sofia, Ovcha 31, 42 by yes Yes, majority Yes, 33kupel region 42 40 2 munic. 14 28 yes no under 50 written
Sofia, Yes, majority Yes, Pancharevo 15 11 4 14, 15 by munic 1 14 yes no no over 50 written region34
Sofia, Poduyane no Yes, majority Yes, no region35 49 44 5 44,44 3 46 yes no over 50 written 28 29 30 31 32 33 34 35
28 Letter 0700-86/12 February 2007, mayor of Lozenec region. 29 Letter PO-07-00-3/21 February 2007, mayor of Mladost region. 30 Letter RD070093/19 February 2007, mayor of Nadezhda region. 31 Letter 0700-81/14 February 2007, mayor of Novi Iskur region. 32 Letter PO 070010/13 February 2007, mayor of Oborishte region. 33 Letter RD 0700-39/6 March 2007, mayor of Ovcha kupel region. 34 Letter 0700106/9 February 2007, mayor of Pancharevo region. 35 Letter 070069/27 February 2007, mayor of Poduyane region.
human rights and guardianship in bulgaria
163
, Shumen guardianship body. guardianship Shumen , 7 200 March 1 / 3 00 5 0 Letter
43
, mayor of Smolyan municipality. Smolyan of mayor , 7 200 February 13 / 1 6 54 0 Letter
2 4
Letter 05002/13 February 2007, deputy-mayor of Sliven municipality Sliven of deputy-mayor 2007, February 05002/13 Letter .
41
, mayor of Vuzrazhdane region. Vuzrazhdane of mayor , 7 200 February 6 1 / 5 00 7 PO0 Letter
0 4
, mayor of Vrubnica region. Vrubnica of mayor , 7 200 February 2 1 0/ 3 00 7 0 RD Letter
9 3
, mayor of Vitosha region. Vitosha of mayor , 7 200 February 1 0098/2 7 0 Letter
8 3
, mayor of Sredec region. Sredec of mayor , 7 200 March 14 / 7 00208 7 PO0 Letter
37
, mayor of Serdika region. Serdika of mayor , 77 20 February 20/6 1 00 7 0 RD Letter
6 3
43 42 1 4 40 39 38 37 36
munic. written 0 5 under
133 Shumen no yes 60 73 20 113 no
43 0 by by 0 4 , 3 9 Yes, Yes, majority Yes,
munic. munic. written 0 5 under
0 1 145 155 Smolyan no no yes 2 4 113
2 4 by by 155 8, 5 Yes, majority majority Yes, Yes, no no Yes,
0 5 under written
Sliven by munic. by 1 82, 11 77 88 6 no no yes 82
41 Yes, majority majority Yes, Yes, Yes,
region
0 4 by munic. by data how data
Vuzrazhdane Vuzrazhdane 6 34 0 4 6 3 4 5 8 to 9 1 Yes, no no yes
0 0 4 , 1 2 Yes, no no Yes,
Sofia, Sofia,
region written 0 5
9 3 3 9 1 22 9 1 3 22 22, no no yes
Sofia, Vrubnica Vrubnica Sofia, Yes, Yes, under Yes,
region written
8 3 0 3 3 7 2 0 3 majority few a no no yes No data No
Sofia, Vitosha Vitosha Sofia, Yes, Yes,
report
region 0 5 under
37 0 1 1 2 31 No data No No data No No data No no no yes they do not not do they
Sofia, Sredec Sredec Sofia, Yes, majority majority Yes,
Yes, but but Yes,
region cases yes cases 0 5 over written
6 3 6 1 17 1 6 17 , 17 11 no yes
Sofia, Serdika Serdika Sofia, Some Some Yes, majority majority Yes, Yes, Yes, 164 mental disability advocacy center
44 Yes, majority Turgovishte 34 32 2 34, 3 -director 11 23 yes no no over 50 Yes
Veliko 37, 13 without 168 48 yes no no Yes, majority yes Turnovo45 214 191 23 guard. under 50
46 39, 74 by Some Yes, majority Yes, no Vraca 83 69 14 munic. 43 39 yes no cases under 50 written
47 42, 41 by Yes, majority Yes, Yambol 42 36 6 munic. A few majority yes yes yes under 50 written
44 45 46 47
44 Letter K480012(1)/2 February 2007, mayor of Turgovishte municipality. 45 Letter 48-11/2 March 2007, mayor of Veliko Turnovo municipality. 46 Letter 91000166/8 February 2007, Vraca guardianship body. 47 Letter 530325/8 February 2007, mayor of Yambol municipality. 166 mental disability advocacy center