2016: Decision making and legal capacity in dementia
Consent to medical treatment
Article 8 (the right to refuse treatment) of the Law on the Rights of Patients and Compensation of the Damage to their Health of 1996 (RPCDH) states that patients may not be treated or provided with any other health or nursing care against their will, unless otherwise established by the laws of the Republic of Lithuania. If the possibility exists, patients must be offered other treatment or other healthcare services (§ 1).
§ 4 of the same article states that „the Law on Mental Healthcare” shall establish the nature of treatment of a patient, mental patient, who is unable to correctly assess the condition of his/her own health. “
Consent to treatment in case of incapacity
Article 6.744 (3) covers consent to treatment in cases where a patient lacks the necessary capacity to consent and does not have a curator or guardian. In such cases, there is a hierarchy of people authorised to consent on the person’s behalf: first, the person authorised in writing by the patient with incapacity to act on his/her behalf, second, the spouse or partner. If the spouse or partner is not available or refuses to consent, the obligation goes to a parent or child unless they refuse.
The right to refuse treatment
Paragraphs 5 and 6 of article 1 of the Law on the Rights of Patients and Compensation of the Damage to their Health of 1996 (RPCDH) address the issue of refusal of treatment by legal representatives. It is not stated whether this is referring to legal representatives of incapable adults or just minors. The paragraphs are as follows:
§ 5. In the course of providing required (first aid or urgent) medical assistance, which requires the consent of the legal representative of the patient, such may be provided also without the legal representative’s consent, if this cannot be obtained in time or if the legal representative refuses to give his consent, while according to the treating physician or nursing staff member, the rendering of medical assistance is in keeping with the interests of the patient. The case history of the illness of the patient must include a record of this.
§ 6. Should the legal representative of a patient refuse to give his consent for treatment, which is not urgent and the treating physician be of the opinion that the treatment being provided is in keeping with the interests of the patient, the medical commission of the healthcare institution or the Committee for Medical Ethics of Lithuania, has the right to give consent for such treatment. The administration of the healthcare institution or the treating physician shall have the right to appeal to this commission or committee.
The right to withdraw consent
Article 8 (4) further states that patients have the right to withdraw consent in written form at any time. Article 6.739 (2) of the Civil Codes grants patients the right to “terminate the contract at any time” and no formal requirements are mentioned.
Consent to research and clinical trials
The Law on Ethics of Biomedical Research, revised at 17 of September, 2015 states that biomedical research can only be carried out on people who have given their free and informed consent (article 7). The law also contains a list of vulnerable subjects which includes people with mental disorders who are nevertheless able to give their consent to take part in biomedical research as well as people living in nursing homes.
Article 6 of this law sets conditions which must be met before such research can be carried out i.e.
- it can only be carried out on vulnerable people,
- the results have the potential to produce real and direct benefit to the health of the research subjects,
- it does not pose a risk to the health or life of the research subject.
Article 7 of the Law on the Rights of Patients and Compensation of the Damage to their Health of 1996 states that people cannot be used for training or scientific or medical experiments without their consent.
There are no legal provisions relating to previously expressed wishes in Lithuania (Nys et al., 2007). However, according to the Law on Human Death and Critical Care, a person should not be resuscitated if he/she has expressed a wish to this effect and provided that there is approval from a doctors’ committee (Council of Europe, 2003).
Issues surrounding the loss of legal capacity
Article 2.10 of the Civil Code states that a person who as a result of mental illness or “imbecility” is unable to understand the meaning of his/her actions or control them may be declared incapable and placed under guardianship. Once under guardianship, the guardian may act on his/her behalf according to rights and duties of the guardian which have been specified by law.
The declaration of incapacity can be requested by the spouse, parents or adult children of the person with presumed incapacity or by a care institution or public prosecutor. This can be done by filing a request or applying to court.
Proxy decision making
The following information in this section is taken from part. II, chapter X.II of the Civil Code which deals with guardianship and curatorship.
Conditions for the appointment of a guardian
According to articles 3.238 and 3.239, guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapable person, whereas curatorship shall be established with the aim of protecting and defending the rights and interests of a person of limited active capacity.
In article 3.277, which deals more specifically with adult guardianship, it is stated that an adult who has been declared legally incapable by the court shall be placed under guardianship by court judgement whereas an adult who has been declared to be of limited active capacity shall be placed under curatorship.
How guardianship is arranged
Having declared a person legally incapable or of limited active capacity, the court designates a guardian or curator without delay.
Who can be a guardian
A guardian or curator must have legal capacity and give written consent that they accept that responsibility. Their moral qualities, capacity to perform the function of guardian or curator, the preferences of the ward and other relevant circumstances must all be taken into account when deciding whom to appoint.
A legally incapable person is considered as having the same domicile as that of his/her guardian unless the guardian lives in a different state and the personal, social and economic interests of the person with incapacity are not in that state. In such cases, the domicile of the person with incapacity would be considered as the one where his/her personal, social and economic interests lie (article 2.13 of the Civil Code).
How the financial affairs of the ward are handled?
If the ward has property or land, the court may appoint an administrator. This could be the guardian, curator or any other person. The administrator of the property is subject to the same conditions as those which would apply to a guardian or curator. The powers of the administrator come to end when the guardianship measure ends or when the court relieves him/her of his/her duties. Guardians or curators must use the assets and income of the ward exclusively in the interests of the ward.
Measures to protect the ward from misuse of power
Transactions of over Litas 5,000 require court approval. Prior approval is also required if the guardian intends to sell, donate or otherwise dispose of immovable assets or property rights of the ward, or to lease them, transfer them for use without remuneration, or carry out other transactions which would reduce the ward’s assets or property rights.
A guardian, curator or their close relatives are not allowed to enter into a transaction with the ward except in cases where they are donating or transferring assets to the ward and provided that such a transaction would be in the interests of the ward.
Compensation and liability of guardians
If the guardian or curator is negligent, fails to ensure the protection of the rights and interests of the ward or uses his or her rights for personal gain, the court may relieve the guardian or the curator of his/her duties. If the person with incapacity has suffered loss or damage as a result of the guardian or curator, the latter must provide compensation. In addition, institutions of guardianship/curatorship have the right to apply to the court for the removal of the guardian or curator.
Municipal or regional institutions are responsible for the supervision and control of the actions of guardians and curators. Guardians and curators, who are a parent or close relative, are not paid for their work, whereas those who are not are entitled to recover necessary related expenses from the assets of the person with incapacity.
Duration of guardianship
No specific time limit is given for guardianship.
Capacity In Specific Domains
Marriage and annulment
According to article 3.15 of the Civil Code, a person who has been declared legally incapacitated by court judgement cannot marry. If it is later found that the person was legally incapacitated at the time of the marriage, the marriage can be declared null and void (article 3.37). Article 3.51 outlines three conditions for divorce by mutual consent, one of which is that both parties have full active legal capacity.
Article 4 of the Law on Mental Health Care of 1995 states that mentally ill people may only be declared incompetent by a court decision.
According to article 2, paragraph 1 of the amended Law on Elections to the Seimas of 2005, citizens who have been declared incompetent by the court are not entitled to participate in elections (which is echoed in article 34 of the Constitution of the Republic of Lithuania of 1992). Paragraph 3 further states that people who have been declared legally incompetent and incapable by the court may not stand for election as members of the Seimas. Voters who are in residential healthcare facilities and institutions of social guardianship and care due to their health condition or age are entitled to vote in such institutions. It is prohibited to exert influence on voters, their self-determination or to rush them to vote. This is covered by article 71 of the amended Law on Elections to the Seimas.
A transaction is voidable if it was made by a person who has been declared legally incapable due to a mental disorder (article 1.84 of the Civil Code). If the capable party involved in the transaction knew or should have known about the incapacity of that other party, s/he would be obliged to provide compensation for any expenses incurred by the incapable party, and also for any damage to or loss of the latter’s property.
A transaction can also be legally annulled if it was made by a person with capacity who was nevertheless at the time of the transaction unable to comprehend the meaning of his/her acts or to control them (article 1.89 of the Civil Code).
Chapter I. of the Civil Code deals with testamentary capacity. The following provisions are relevant:
- A will may be made only by a legally capable person who is able to comprehend the importance and consequences of his/her actions (article 5.15, §2).
- A will shall be null and void if made by a legally incapable person (article 5.16, §1.1).
Last Updated: Wednesday 08 February 2017