Appointment of a guardian in cases of recognition of a person as legally incompetent: the dilemma of balancing the private interest of a disabled person and the public interest

Abstract

The article is devoted to the analysis of the procedural features and the importance of judicial discretion in appointing a guardian in cases of recognizing a person as incapacitated through the prism of current challenges, legal positions of the Supreme Court, and also a scientific study of the ratio of public and private interest in this category of cases. The scientific methods of analysis and synthesis, induction and deduction, and abstraction were applied.

This scientific study is due to the fact that cases of recognizing persons as incapacitated have become much more common in courts since the beginning of the full-scale invasion of Ukraine by the Russian Federation troops. The above indicates an urgent need to harmonize the individual rights of citizens to social care with the national priority of protecting sovereignty. A key aspect of this problem is the emergence of numerous legal dilemmas at the junction of civil and military legislation.

The authors summarized that the courts should be very careful, moderate and comprehensive in their approach to appointing a guardian over an incapacitated person if the applicant is a person liable for military service or a military serviceman.

There is no unambiguous and only correct algorithm for making a decision by the court (judge and jury), and each case has its own characteristics.

At the same time, the court should examine the living conditions, the complexity of care, relationships, and communication of the incapacitated person with family members for a long time before considering the case in court, take into account the special status of such a person, his sensitivity and, accordingly, the need for the most effective protection from the state.

On the other hand, military personnel who properly fulfill their constitutional duty to protect and defend Ukraine, including ensuring the usual way of life and life in the rear of the same incapacitated person. And, of course, all of us.

Therefore, the court has no right to ignore the public interest. The court must understand as much as possible the life circumstances that become the subject of investigation in the hearings and find out whether the incapacitated person is not being used by an unscrupulous relative as a tool to evade mobilization. In such a case, the court, having comprehensively established the circumstances of the case, and having adopted a balanced, reasoned and motivated decision, will ensure both private and public interest, which will not contradict each other.