2016: Decision making and legal capacity in dementia
Consent to medical treatment
Article 87 of the Law of Health of 1 January 2005 (last amended 02.06.2009) states that medical activities may only be implemented after expressed informed consent has been given by the patient. Article 88 specifies the kind of information that the doctor should provide to the patient, which includes details of the diagnosis and the nature of the disease, details of the nature and goals of the treatment, possible alternatives, expected outcomes, potential risks, the likelihood of a favourable outcome and the risks involved in opting for an alternative treatment or in refusing treatment (Goffin et al., 2007).
Consent to treatment in the case of incapacity
In the case of incapacity, a few options for consent exist: 1. If the patient is “under limited interdict” (under partial legal incapacity) with regard to medical activities, his/her consent as well as that of his/her guardian is required (article 87 of the Law of Health). 2. If the patient is “judicially incapable” (under full legal incapacity) informed consent must be provided by the guardian (except in cases determined by law). 3. For patients with mental disorders and established inability to express informed consent, such consent shall be expressed by persons mentioned in article 162 of the same law. Article 162, paragraph 3 of the Law of Health states: “When a lack of ability of the person is accepted, the court shall decree compulsory treatment and appoint a person from the relatives of the ill person, who is to express informed consent for the treatment. Upon conflict of interests or lack of relatives, the court shall appoint a representative of the municipal health service or a person, defined by the mayor of the municipality at the headquarters of the medical establishment, who is to express informed consent about the treatment of the person.” In certain cases, this information and the informed consent must be given in writing. Such cases include surgical intervention, total anaesthesia, and invasive and other diagnostic and therapeutic methods leading to an increased risk to the life and health of the patient or to a temporary change in his/her consciousness. Medical care can only be carried out without the necessary consent in specific cases determined by law (art. 91).
The right to refuse treatment
At any time, the patient, his/her guardian or trustee or his/her appointed representative can refuse proposed medical care or the continuation of medical activities. Such refusals must be signed and recorded in the patient’s medical file. If those concerned are unable or refuse to sign, the treating doctor and a witness must sign in their place (art. 90). If treatment is refused and this threatens the life of the patient, the chief of the medical establishment can decide to initiate lifesaving treatment.
The right to withdraw consent as stated above, the patient, his/her guardian or trustee or his/her appointed representative can refuse the continuation of medical activities (i.e. withdraw consent that has already been given). The patient may also withdraw the refusal of treatment at any time. Medical care against the wishes of the patient may be given only in cases determined by law.
Consent to clinical trials
The Act on the Medicinal Products in the Human Medicine states that a patient cannot be involved in a clinical trial until s/he has been informed beforehand by a doctor (member of the research team) and provided with a full explanation of the goals, risks, inconveniences and procedure. The doctor must also have informed the patient of the right to refuse to take part and have reassured the patient that refusal would not result in negative consequences for him/her.
Consent to research
It is stated in article 29 of the Constitution of the Republic of Bulgaria that nobody may be subjected to medical, scientific or other experimentation without his/her voluntary written consent.
Advance directives do not have legal status in Bulgaria. At the time of writing the present report, the Bulgarian government has issued a project of Law for Individuals and Measures for Support where the advanced directives are settled. The project of the law is still not voted by the Bulgarian National Assembly and it cannot be said in advance what will be the result of the vote.
Issues surrounding the loss of legal capacity
The Law for the Persons and Family of 1949 (with amendments to 2002) states that adults who are unable to take care of their own affairs due to a mental disorder shall be declared legally incompetent and placed under “full judicial disability”. Those whose condition is not as severe shall be placed under “restricted judicial disability” (article 5).
Establishing incapacity (also known as interdiction)
According to the Code of Civil Procedure (CCP), full and restricted interdiction (referred to in the CCP as incapacity) must be determined in court. The request for interdiction can be made by the spouse, close friends, prosecutor or anyone else with a legal interest in the matter. The prosecutor must, however, participate in the proceedings. The person whose interdiction is sought must be questioned in person and, if need be, can be brought to court by force. The court must listen to the person concerned as well as his/her relatives, and gather additional evidence if necessary.
Proxy decision making
Conditions for the appointment of a guardian
Chapter 11 of the Family Code of 1 Oct 2009 deals with full legal guardianship and trusteeship. Article 153 states that full legal guardianship is instituted over people who are under full interdiction and that trusteeship is instituted over people who are under restricted interdiction. The following information on guardianship and trusteeship is taken from the Family Code.
How guardianship is arranged
Guardianship and trusteeship are organised by the organ of the full legal guardianship and trusteeship (hereafter referred to as the OGT) of the municipality where the person, for whom the measure is intended (i.e. the future ward), resides. The mayor or his/her official representative is the OGT.
The OGT appoints a full legal guardian, a deputy full legal guardian and two advisors from the family and close friends of the future ward in order to take care of the interests of the latter. These people make up the full legal guardianship council. For trusteeship, the OGT appoints a trustee and a deputy trustee from among the relatives and close friends of the future ward. They make up the trusteeship council which is responsible for taking care of the interests of the future ward.
The OGT can make changes to the full guardianship and trusteeship councils at any time but must listen to the opinions of the wards, as well as their close relatives and friends. The OGT or his/her representative makes a full inventory of the future ward’s property and takes any necessary measures to protect his/her interests until a full legal guardian or trustee has been appointed (art. 159). The interested parties are entitled to appeal to the regional court against the acts of the OGT. The decision of the regional court is not subject to appeal (art. 161).
Who can be a member of the guardianship/trusteeship council
The capable spouse of a person under full interdiction or restricted interdiction is usually appointed as the full legal guardian or trustee (respectively) unless this is not possible. The following people cannot be members of full legal guardianship or trusteeship councils:
- those who are incapable;
- those who have been deprived of parental rights;
- those who have been sentenced for crimes committed with intent.
The duties and responsibilities of guardians/trustees
The full legal guardian is obliged to care for the ward, to administer his/her property and represent him/her before third parties. Within one month, the full legal guardian must inform the OGT about the acquisition of properties of considerable value which have to be entered into an inventory. The disposal of property belonging to the ward is governed by article 130, paragraphs 3 and 4, sentence 1. Full legal guardians and trustees must obtain permission from the regional court to draw sums of money from the ward’s bank deposit. When applying for permission, the opinion of the full legal guardianship council/trusteeship council must be attached. Income from the ward must be deposited in an account in his/her own name within 7 days of receiving it. For sums of money not deposited in time, legal interest must be paid by the guardian/trustee (art. 165, paragraph 3). The ward must live with the full legal guardian or trustee unless there are important reasons to live elsewhere (art. 163). If the ward changes his/her place of residence without the consent of the guardian/trustee, the latter may request the regional court to issue an order for the return of the ward to the designated place of abode.
Duties and responsibilities of the deputy legal guardian/deputy trustee
The deputy legal guardian and the deputy trustee replace the full legal guardian and the trustee whenever the latter are prevented from carrying out their duties or in cases where there could be a conflict of interests (art. 169). The activities of guardians and trustees are honorary, but the municipal council must assist them in carrying out their functions.
Duties and responsibilities of the advisors in the full legal guardianship council
The role of the advisors is to assist the full legal guardian and the deputy legal guardian in carrying out their obligations and to inform the OGT about any shortcomings regarding the protection of the rights and interests of the ward. They also hear the report of the full legal guardian and participate in its endorsement by the OGT. The advisors may suggest dismissal of the full legal guardian. There are some cases in which the guardian may only take action after having received the advisor’s approval.
Measures to protect the ward from misuse of power
According to article 171, the full legal guardian must submit a report by the end of February each year to the full legal guardianship council, which is then presented to the OGT. A report must also be submitted whenever a full legal guardian is relieved of his/her duties and whenever the OGT requests one. At the request of the OGT, the trustee must provide an explanation about his/her activities in the presence of the deputy trustee. If the full legal guardian (or trustee), for no valid reason, fails to appear in court, s/he may be fined from leva 50 to leva 500. The OGT may in such cases ask the deputy full legal guardian or the deputy trustee to submit the report or provide an explanation. The OGT states his/her opinion concerning the report or explanation and takes the necessary measures if irregularities are detected. The OGT may request a bill of execution from the regional court for sums of money that the full legal guardian has not accounted for.
Duration of guardianship
There is no restriction on the duration of the interdiction once it has been established.
The right to appeal (against guardianship)
Appeals to the regional court against acts relating to guardianship and trusteeship, and the refusal to establish guardianship or trusteeship or to take measures under art. 159, may be made by the parties concerned or by the prosecutor. The decision of the regional court is not subject to appeal. (Аrt. 161 of the Family code).
Cancellation of interdiction
For cancellation of interdiction are applicable the same rules that apply for its admission (art. 340 CCP). As defendants should be constituted the same persons, which asked the interdiction or the person’s close relatives. There is no obstacle the cancellation of interdiction to be asked by those who were plaintiffs in the production of guardianship if circumstances have changed. A person put under restricted interdiction alone or with the consent of the trustee, can request cancellation of his interdiction. A person put under full interdiction may also ask the organ of the guardianship or the guardianship council to approach the district court which has issued the same interdiction. The person put under full interdiction in such cases legitimize his reorganization with medical document or record of MCC. In such a process the person himself will have the role of a plaintiff.
When the trustee of the person put under restricted interdiction, the guardian of the person put under full interdiction, or the trustee or guardianship council refuse to request cancellation of interdiction, the person put under interdiction may apply to the prosecutor asking the latter to claim cancellation of interdiction.
Continuing powers of attorney
In Bulgaria, powers of attorney are usually permanent, unless stated otherwise. However, after placing a person under full or limited interdiction, the validity of proxies established by that person ends.
Capacity In Specific Domains
Marriage and divorce
According to article 7 of the Family Code of 1Oct 2009, a marriage may not be contracted by a person who is under full interdiction or who suffers from a mental disease to such an extent as to warrant being placed under full interdiction. Article 46 further stipulates that a marriage that has been contracted in violation of article 7 may be annulled. The action for annulment may be brought by either of the spouses or the public prosecutor.
Every citizen above the age of 18, with the exception of those placed under judicial interdiction or serving a prison sentence, is free to elect state and local authorities and vote in referendums (art. 42 of the Bulgarian Constitution).
Placing а person under full or limited judicial interdiction is associated with loss of the right to exercise his/her legal rights and obligations by him/herself. If s/he is considered completely incapacitated, s/he can only exercise his/her rights through another person who has capacity, i.e. a guardian. The guardian represents the person placed under full judicial interdiction. S/he substitutes the fully interdicted person before third parties. As for a person who has been placed under restricted interdiction, s/he does not completely lose his/her ability to perform legal acts. For actions with legal consequences, carried out by a person placed under restricted interdiction, the approval of the trustee is necessary. However, people under restricted interdiction are free to carry out regular small transactions to meet their current needs and to have access to what they have acquired through their own work (Art. 4, Par. 2 of the Law for Individuals and Families). Contracts entered into by interdicted people or their representatives, which do not comply with the legal requirements established for such matters, are voidable. (Art. 27 of the Obligation and Contract Law). Certain transactions involving the assets of a person under legal interdiction are prohibited or may only be carried out with the permission of the court, namely: Engaging in actions to dispose of real estate, movable property by a formal deal, with deposits and securities belonging to the interdicted person, is allowed with the permission of the district court, provided that this would not be contrary to the interests of the interdicted person. Donations, disclaimers, and lending and providing foreign liabilities of the interdicted person shall be void. Exceptionally, secure foreign obligations by pledge or mortgage may be made with the permission of the district court in cases of obvious need or benefit to the interdicted person (Art. 130 of the Family Code).
Every person who is above the age of 18 and who has not been placed under full judicial interdiction due to imbecility and who is able to act reasonably, may dispose of his/her property after his/her death by means of a testament (Art. 13 of the Legacy Law).
Anyone who is incapable of understanding or directing/controlling his/her actions is not responsible for the damages caused whilst in that condition, unless s/he is responsible for having caused the incapability. For damage caused by a person who is incapable, the person who is obliged to supervise him/her is responsible for him/her unless that person could not have prevented such damage. (Art. 47 of the Obligation and Contract Law).
Chapter 3 of the Penal Code deals with criminal responsibility. In order to be considered criminally responsible, a person must be at least 18 years of age and have been sane at the time the crime was committed (article 31). A person who had a continuous or short-term mental disorder at the time of the crime and was consequently unable to understand the quality or importance of the act or could not control his/her behaviour, shall not be considered criminally responsible (article 33). If a person who commits a crime and then “lapses into a mental disorder “before the verdict has been made, and cannot therefore understand the quality or importance of his/ her behaviour (or control his/her behaviour) shall not be punished. If the person recovers, the punishment may be applied (article 33).
Recent Developments In Legislation
Bulgaria ratified the CRPD on 26 January 2012, just a few days after the Grand Chamber of the ECtHR issued its judgment in theStanev v. Bulgariacase.164 The two events prompted the Ministry of Justice to form a working group composed of experts from the Ministries of Justice and Labour and Social Policy, as well as representatives of NGOs and academia. The working group is to reform legal capacity provisions in line with Article 12 of the CPRD. It published a concept paper that envisages the abolition of plenary guardianship and the adoption of alternative measures such as advanced directives and supported decision-making. The concept paper also stipulates that protection measures should be based on the principles of necessity, proportionality, flexibility, respect for the will of the person and periodic review
At the time of writing the present report, the Bulgarian government has issued a project of Law for Individuals and Measures for Support which subject is the legal capacity of natural persons, and conditions for providing support in carrying out of specific legal action. The law gives a new arrangement of public relations related to the exercise of the rights of individuals who on account of namely mentioned reasons: intellectual difficulties, mental disorder or dementia - have difficulty in making decisions for specific legal action.
The law previses the deletion of the Institute of interdiction - full and limited, through which up to now social relations in cases where individuals are unable to understand the nature and meaning of their actions and to guide their actions, were regulated.
If up to now, according to the current legislation, all cases resulted in the guardianship of the person, depending on its condition - full or limited, the new law reinforced measures shall be prescribed only in cases of immediate risk to life health or property of the person. The project of the law is still not voted by the Bulgarian National Assembly and it cannot be said in advance what will be the result of the vote.
Last Updated: Thursday 09 February 2017