2016: Decision making and legal capacity in dementia
Consent to medical treatment
According to section 28, article 1, of the Health Services Act, No. 372/2011 Coll., health services are provided with the free and informed consent of the patient, unless stipulated otherwise by this Act (emergency or acute care e.g.). Adults lacking legal capacity have right to continuous presence of a guardian, if they are not capable to consider the provision of health services, or the consequences of their provision (according to section 28, paragraph e, article 2); both the patient and the guardian must be informed. According to section 35 their opinion must be discovered and taken into account, if their mental capacity allows it. Health service provider shall, according to section 40, inform the court within 24 hours of hospitalization of a patient whose health condition requires the provision of emergency care and who is not capable – because of the condition - to give his/her consent. (a consent to an intervention is also covered by the Civil Code, act no. 89/2012 Coll.)
The right to refuse treatment
A person who refuses a medical intervention, despite having received the necessary information, must give written confirmation of this refusal (Health Services Act No. 372 of 2011, section 34, article 3). Section 6 of the article states: If the patient's condition does not allow him/her to express a consent, withdrawal of consent or disagreement with the provision of health services, health care worker lists expression of the will of the patient to the patient’s medical records, indicating the way the patient manifested his will and health reasons preventing patient to express his/her will in the desired manner; the record is signed by a healthcare professional and a witness.
Consent to research
Written consent must be given by the patient before scientific research can be carried out on him/her. Before giving consent, the patient must have been informed about the nature and purpose of the research, how it will be carried out, how long it will take and whether there are any risks involved. Consent must be given by a person with legal capacity, or his/her guardian (oral consent is possible if made in front of a witness and is written down); Act No. 378/2007 Coll., On pharmaceuticals, section 51.
Advance directives for health care are covered in Health Care Services Act, in section 36. Advance directives must be written, must contain written information about consequences of such decision. An advance directive can be made only by a person with legal capacity. There are also “declaration in anticipation of incapacity” covered in the Civil Code (see below).
Issues surrounding the loss of legal capacity
Every person is considered as having legal capacity from the moment s/he is born until the moment s/he dies. The subject acquires legal competency with increasing age (for penal as well as labour legal competency from the age of 15). Complete legal competency is acquired when a person reaches 18 years of age and it covers each person’s competency to acquire rights and to carry out legal acts for which they are legally responsible.
Person who is aware of his/her future legal incapacity can make declaration in anticipation of incapacity (section 38 of the Civil Code). Court should take into account subsidiary measures in the case of disrupted capacity of an adult to make juridical acts: assistance in decision making, representation by a household member and finally limitation of legal capacity. Section 55 of the Civil Code states: (1) Legal capacity may only be limited in the interests of the individual concerned, after he has been seen by a court and with full recognition of his rights and his personal uniqueness. In so doing, the extent and degree of the individual’s inability to take care of his own matters must be carefully taken into account.
Proxy decision making
Conditions for the appointment of a guardian
According to Section 457of the Civil Code, legal representation and guardianship aim to protect the interests of the person represented and the fulfilment of his rights.
Section 59 of the Civil Code states: A court may limit legal capacity in connection with a certain matter for a period necessary to arrange such matter, or for an otherwise defined definite period not exceeding three years.
How guardianship is arranged
Section 463 of the Civil Code states: A guardian is appointed by a court; the court shall also determine the scope of rights and duties of the guardian. The person for whom a court has appointed a guardian becomes a ward for the duration of the guardianship.
Section 62 states: In its decision to limit the legal capacity of an individual, a court shall appoint a guardian for the individual. When choosing a guardian, the court shall take into account the wishes of the ward, his needs as well as the suggestions of close persons of the ward, provided that they pursue his well-being, and ensure that by choosing a guardian the court does not establish a relationship of mistrust of the ward towards the guardian.
Who can be a guardian
Section 63 of the Civil Code states: A person lacking legal capacity, or a person whose interests are contrary to the interests of the ward, or the operator of a facility where the ward stays or which provides him with services, or a person dependent on such a facility, may not be appointed as a guardian.
Section 471 of the Civil Code states:
(2) A court shall appoint the person proposed by the ward to be his guardian. If this is not possible, the court, in choosing the guardian, shall typically appoint a relative or another close person of the ward who demonstrates a long-term and serious interest in the ward and the ability to have such interest in the future. If this is not possible, the court shall, in choosing the guardian, appoint another person who meets the conditions for becoming a guardian or public guardian under another statute.
(3) The municipality in which the ward has his residence, or a legal person established by the municipality to perform the tasks of this kind, has the capacity to become a public guardian; appointing a public guardian under another statute is not subject to the public guardian’s approval.
The duties and responsibilities of guardians
Section 465 of the Civil Code states: (2) If justified by the circumstances, the court may order a guardian to conclude insurance, to a reasonable extent, against harm he may cause to the ward or to another person in the performance of his function
Measures to protect the ward from misuse of power
Section 460 of the Civil Code states: If there is a conflict between the interests of a legal representative or guardian and the interest of the person represented, or a conflict of interests of those who are represented by the same legal representative or guardian, or in case of a threat of such a conflict, a guardian ad litem is appointed by a court.
Section 469 states 2) A guardian usually acts jointly with the ward; if the guardian acts individually, he shall act in accordance with the will of the ward. If the will of the ward cannot be ascertained, the decision is made by a court on the application of the guardian.
A guardianship council is set up. Section 480 states:
(1) Without the consent of the guardianship council, a guardian may not decide to:
a) change the residence of the ward,
b) place the ward in a closed institution or a similar facility unless evidently required by his health condition, or
c) interfere with the integrity of the ward, unless the interference is without serious consequences.
(2) Without the consent of the guardianship council, a guardian may not dispose of the property of the ward in the case of:
a) acquisition or alienation of property with a value exceeding one hundred times the minimum living level for an individual under another legal regulation,
b) acquisition or alienation of property exceeding one third of the property of the ward, unless such one third has only a negligible value, or
c) receipt or provision of a loan for consumption, credit or security in the values under paragraph (a) or (b), unless such a decision also requires court approval.
(3) If it is in the interests of the ward, the guardianship council may resolve on other decisions made by the guardian concerning the ward which are to be subject to its approval; such resolutions may not limit the guardian beyond what is reasonable given the circumstances.
If a guardianship council is not elected, measures by the guardian concerning the ward or his assets and liabilities are decided by a court instead of the guardianship council (section 482).
Duration of guardianship
Section 463 of the Civil Code states: (2) The court shall remove a guardian upon his request; the court shall also remove a guardian if he fails to fulfil his duties. The court shall at the same time appoint a new guardian for the ward.
The right to appeal
Section 59 of the Civil Code states: A court may limit legal capacity in connection with a certain matter for a period necessary to arrange such matter, or for an otherwise defined definite period not exceeding three years. Section 60 states: If the circumstances change, a court shall, even of its own motion, change or cancel its decision without delay.
Continuing powers of attorney
The Civil Code contains a few paragraphs on powers of attorney. However, it is not clear from the text whether this measure also applies to people lacking the legal capacity to act.
Capacity In Specific Domains
Marriage and annulment
Section 673 of the Civil Code states: A person whose legal capacity to enter into marriage has been limited may not enter into marriage.
According to Act No. 247 on Elections to the Parliament of the Czech Republic every person who has reached the age of 18 may vote (section 1) unless s/he has been incapacitated for the performance of voting right (section 2).
Section 64 of the Civil Code states: The decision to limit the legal capacity does not deprive an individual of the right to individually make juridical acts in ordinary matters of everyday life. Section 65 then states:
(1) If the ward acted on his own without being allowed to act without a guardian, his juridical act may only be declared invalid if it has caused him harm. However, if a change of scope of the duties of the ward is sufficient as a remedy, the court shall do so without being bound by the parties’ motions.
(2) If the ward acted on his own without being allowed to act without a guardian, the act of the former is considered to be valid if approved by the guardian. This also applies if the person acting approved such a juridical act himself after acquiring legal capacity.
Section 1525 of the Civil Code states: A person lacking legal capacity is incapable of making dispositions mortis causa. (Section 458 of the Civil Code state: A legal representative or guardian is not authorised to make juridical acts on behalf of the person represented in matters relating to the formation and termination of marriage, exercise of parental rights and duties, and the disposition mortis causa and declaration of disinheritance and their withdrawal.
Section 2920 of the Civil Code regulates the responsibility for damage incurred by people who cannot judge the consequences of their acts. A person with a mental disorder is responsible for damage s/he causes when capable of controlling his/her acts and of judging the consequences of his/her acts. His/her guardian is jointly and severally responsible (Section 2921).
According to the Penal Code people with limited legal capacity must have a defence counsel already in pre-trial proceedings (section 36). The prosecutor also interrupts the prosecution, if the accused is, for mental illness that occurred after the crime, unable to understand the meaning of prosecution (section 173). The court acquits the accused, if the accused is not criminally responsible due to insanity (section 226).
Last Updated: Wednesday 08 February 2017