Total incapacitation

As set out in the civilian Code in Article 13(1), a individual who is thirteen years of age may be incapacitated entirely if, as a consequence of intellectual illness, intellectual maldevelopment or another intellectual disorders, in peculiar drunkenness or drug abuse, is incapable to guide his actions.
The intent of incapacitation is so to assist that individual in his individual or property affairs.

Grounds for incapacitation

Taking into account the interest of the individual afraid by the request for inadmissibility, it should be considered that it is essential to consider and establish in order to resolve the application two sentk: First, whether the state of intellectual illness found in that individual excludes its ability to conduct its proceedings or simply restricts it and to what extent, second, if the first condition exists, or whether the full or partial incapacitation is intentional due to the person's individual and property relation (yes: ultimate Court order of 17 November 1976, I CR 384/96).

Incapacitation can only happen – wholly or partially – due to intellectual disorders (Articles 13 and 16). These civilian codes include intellectual illness, intellectual retardation, and another disorders, in peculiar drunkenness or drug abuse. The calculation quoted is examples, so closed (order of the ultimate Court of 7 May 1970, I CR 176/70).

Incapacitation is in the interests of an incapacitated individual besides erstwhile the consequence is created more favourable conditions for the arrangement of the person’s property relations. The property rights of the incapacitated individual may, for the benefit of the person, be represented by a legal guardian (Article 13(2)(c)) who in all major cases concerning the individual and assets of the subject must get the consent of the custody court (Article 156 in conjunction with Article 175 k.r.o.) (yes: ultimate Court order of 17 February 1981, II CR 11/81).

Inability to direct his actions as a condition for full incapacitation

As indicated, the existence of a intellectual illness or any another origin referred to in Article 13(1) of the Code is not adequate to enable a decision to be given in full. It must be accompanied by a causal link to these causes inability to direct their actions, widely understood, by the natural individual concerned. The word ‘inability’ means the deficiency of informed contact with the environment and the inability to intellectually measure its situation, behaviour and consequences (yes: the ultimate Court order of 17 May 2013); I CSK 122/13).

The doctrine points out that the inability to direct his actions, the premise of full incapacitation, refers to legal acts alternatively than to another activities. It is about the inability to carry out informed and free legal acts, as in Article 82 kc, that the declaration of will made by a individual who, for any reason, was in a state that was in a state that excluded consciously or freely the decision and expressed his will – peculiarly concerning intellectual illness, intellectual underdevelopment or any other, even transient, intellectual disorder.

As a general rule, the divisions on the existence of intellectual illness or another intellectual illness indicated in Article 13(1) of the Code of Conduct should take place after the preliminary determination that the individual afraid by the request for incapacitation has no informed contact with the environment and the anticipation of intellectual assessment of his or her situation, conduct and consequences (yes: order of the ultimate Court of 17 May 2013, I CSK 122/13, no publ.).

Findings of grounds for inadmissibility by the court

The determination that the individual is incapable to direct his actions should include analysis of cognitive processes, emotional state, social maturity, ability to realize the meaning of action, predicting effects, motivation (M. Zima-Parjaszewska, Article 12 of the UN Convention..., p. 79).

The determination of the grounds for incapacitation should be based on a comprehensive and thorough assessment of the collected material, which should include, in addition to the expert (or expert) opinion of the psychiatrist, evidence from the person’s testimony, with which the associate in the application for incapacitation remains in constant or frequent individual contact (family members, neighbors, friends, colleagues, doctors who have treated or treated the participant, etc.), documents concerning treatment, infirmary stay, etc. (yes: ultimate Court order of 17 November 1976, I CR 384/96/76).

Total incapacitation and circumstantial surviving situation (e.g. household death, depression)

When assessing the ability of a individual affected by intellectual disorders, to direct his or her actions The court must not disregard the peculiar life situation of the individual afraid and the ability of the individual afraid to conduct his or her proceedings in the circumstances surrounding the situation.

The assessment of the above anticipation in isolation from a given situation, only in terms of symptoms, from a medical point of view, for a peculiar kind of psychiatric disorder, is not adequate to measure the merits of the request for incapacitation (yes: ultimate Court order of 27 January 1975, ICR 797/74).

Total incapacitation and illness remission and improvement periods

The expert’s message that during improvement periods the patient is aware of his or her actions and is aware of his or her circumstances, is not tantamount to stating the ability to guide his or her actions in the sense of Article 13 § 1 k.c.

He plays an crucial function in “directing” behaviour, alongside awareness, an component of will. It is crucial to find whether a associate during the period remission is able to carry out legal acts aimed at achieving the intended legal effects and with full awareness of these effects and their relevance (yes: ultimate Court order of 26 February 1971, I CR 659/70).

Purpose as a essential component of incapacitation

If, in view of the individual and property situation of the individual afraid by the application for incapacitation, the decision of full incapacitation is not proportionate to the degree to which it affects the rights and interests of that person, the full incapacitation may not be ruled.

The rationale for incapacitation is essential in the context of Article 12(4) of the Convention on the Rights of Persons with Disabilities, drawn up in fresh York on 13 December 2006, which states that: ‘The Parties shall guarantee that any measures relating to the exercise of legal capacity include adequate and effective safeguards to prevent abuse, in accordance with global human rights law. The safeguards shall guarantee that measures relating to the exercise of legal capacity respect the rights, wills and preferences of the person, are free from conflicts of interest and unlawful pressures, are proportionate and adapted to the situation of the individual concerned, are applied as shortly as possible and are regularly reviewed by the competent independent and impartial authorities or judicial authority. Securities shall be proportionate to the degree that specified measures affect the rights and interests of the individual concerned."

Since the Convention has been ratified with the prior agreement expressed in the Act, in accordance with Article 91(2) of the Constitution, it shall prevail over the Act in the event that it is incompatible with it, as an global agreement ratified with the prior agreement expressed in the Act. Therefore, it is irrelevant that an expressis verbis of this condition is not indicated by the legislator in Article 13(1) of the Code, especially since the judicature (which accepted the discipline of law) has consistently reads this provision (as in Article 16(1) of the Code) for respective decades, that its application requires the fulfilment of the condition of the intent of incapacitation (so: order of the Court of Appeal in Katowice of 17 May 2018, Act No V ACa 427/17).

Dismissal of a request for full incapacitation

In spite of the conditions of Article 13 k.c. leading to complete incapacitation, The Court of First Instance may dismiss the request for incapacitation, if your life situation is stabilizedit is assured sufficient factual care and there is no request to take any action requiring the establishment of legal protection, and the decision of incapacitation could lead to a distortion of the beneficial situation for the sick person’s interests (yes: order of the ultimate Court of 5 January 1977, ICR 450/76).

The anticipation of a partial waiver in the event of a request for full waiver

The doctrine predominates the view that the 2 judgments — whether partial or full incapacitation — are single-generation decisions and thus the decision of partial incapacitation does not infringe Article 321(1) in conjunction with Article 13(2) kpc, which states that the court cannot regulation on an object which has not been subject to a request, nor justice beyond a request, in conjunction with Article 13(2) kpc, erstwhile the application is subject to full incapacitation. In specified a case, it is simply a ‘less’ (minus) judgement in relation to the applicant’s request, and the scope (type) of the aid covered by the judgement will vary depending on the kind of inadmissibility.

Thus, the application for complete incapacitation besides entitles the court to a partial incapacitation judgment, which is included in the request for a full incapacitation decision (yes: order of the ultimate Court of 26 January 2012, act No III CSK 169/11, OSNC 2012, No 7-8, item 97).

Total incapacitation and behaviour not accepted in society

Forms of behaviour not conforming to the moral and moral canons adopted in society (entry into a spiritual sect, change of worldview and the way of life to date) if they do not affect a origin in the form of intellectual underdevelopment, intellectual illness or intellectual disorders, do not justify incapacitation the individual who presents specified behaviour (yes: order of the Bialystok Court of Appeal of 20 September 1994, I ACr 143/94).

Incapacitation of the aged due to dementia

In its order of 13 January 1975, I CR 787/74, the ultimate Court stated that the grounds for incapacitation may besides be the existence of intellectual disorders which, after all, may be caused by various causes in this besides existence an old psychoorganic syndrome. The existence of specified a disturbance in the associate of the proceedings does not exempt the court from the work to explain whether they consequence in the request to incapacitate even partially for the benefit of the participant.

Incapacitation and institution to establish a curator for disabled persons

In case of General Disorders of Age the request to establish curator for disabled persons than the request for complete or partial incapacitation. Of course, taking the right position with the alleged psycho-organic squad can make crucial difficulties. erstwhile considering whether incapacitation or the establishment of a probationary officer for a disabled individual should be ordered, the court should be guided by the result of the decision. more favourable to the individual and in circumstantial factual circumstances (Ciszewski Jerzy (ed.), civilian Code. Commentary, issue II, LexisNexis 2014). The institution of incapacitation is conceived in Polish law in order to defend the interests of the individual who is to be incapacitated, not another persons. Taking into account This nonsubjective should be interpreted and applied both by substantive law and by procedural law. (order of the ultimate Court of 27 September 1972, II CR 354/72).

Article 183 k.r.o. states that for a disabled person, a curator is established if the individual needs aid for all cases or cases of a peculiar kind or to settle a peculiar case. The duties and powers of the curator shall be determined by the guardian court.

The state of intellectual weakness – peculiarly due to age – which does not qualify as a intellectual illness, intellectual retardation or another kind of intellectual disorder defining the basis for incapacitation (Article 13 and 16 k.c.), is a handicap within the meaning of Article 183 k.r.o In specified a case, the appropriate measurement for the protection of the procedural interests of a disabled individual may be taken by the court ruling on the steps to establish for that individual the curator referred to in Article 183 k.r.o. (The ultimate Court order of 8 December 2016, III CZ 54/16).

Curatela of Article 183 k.r.o. established for a individual who is full capable of directing his or her actions and who is disabled, despite the setting up of a curator, it may carry out any legal action on its own and the decision to establish a curator may not contain any restrictions in this respect.
It is full applicable to this curate, reserved for the guardian's court to decide on the choice of the probation officer and to exercise control over his or her activities and to change the individual of the probation officer, if the welfare of the subject of the curate (the ultimate Court resolution of 14 December 1982, III CZP 55/82 so requires).

The curatela shall be repealed at the request of the disabled individual for whom it was established.

Establishment of a maintainer for the incapacitated entirely

For an incapacitated person, it is completely established careUnless it remains under parental authority.
According to Article 176 k.r.o.If, for the sake of the welfare of the dependant, this is not an obstacle, the incapacitated guardian should be full established first of all his spouse and, failing that, his father or mother.
For incapacitated care is completely used by rules on the care of minors.

Effects of incapacitation

A completely incapacitated individual may take procedural action only by the established maintainer. This applies to all procedural proceedings, i.e. not only to bring an action, but besides to any another action in the course of the proceedings (order of the ultimate Court of 3 April 1981, IV CZ 38/81).

Prosecution by a individual who has no procedural capacity (incapacitated entirely) for which his/her legal typical (protector) operates, but Non-legitimate with the required court permit to bring an action is tantamount to failure to act for the plaintiff of a legal representative. This deficiency causes dismiss the lawsuit. This is, however, not removable (Article 199(2)(c)). In order to remove it, the court, acting ex officio, should set an appropriate time limit (Article 70(1).). Therefore, there are no obstacles to the required authorisation of the welfare court It's over. Court of Appeal in Łódź of 22 October 2014, And ACa 1104/14).

Moment of failure of the procedural capacity of the individual to whom the incapacitation is pending

The failure of the procedural capacity occurs with the minute of incapacitation of the natural person, in no case may this happen before the Court of First Instance has given its decision on the merits of the application. The provisions of the Code of civilian Procedure do not restrict the procedural capacity of the organization to which there may be grounds for incarceration (yes: the ultimate Court judgement of 12 April 2012), Ref. Act I PK 160/11).

The existence of grounds for incarceration and the suspension of civilian proceedings

Even the intellectual illness of a full-time and unincapacitated individual does not give emergence to a suspension of proceedings, due to the fact that despite intellectual illness it has the capacity to process (yes: order of the ultimate Court of 26 August 1970, act mention I CZ 84/70, OSNCP 1971, no. 5, item 90. Comment on Art. 174 k.p.c. Ereciński, Jędrzejewska p. 481).

Total incapacitation and forced treatment

The incapacitated individual is full entitled to object to the provision of wellness care, despite the consent of the statutory representative, which besides includes the admission to the intellectual infirmary of a full incapacitated adult, capable of consenting.

This follows from Article 17(3) of the Act of 6 November 2008 on Patient Rights and Patient Rights Ombudsman and Article 22(4) of the Act of 19 August 1994 on the Protection of intellectual Health.

The first of these provisions states that: “A insignificant who is 16 years of age, an incapacitated person, or a mentally sick or mentally impaired patient with adequate discretion, has the right to object to the provision of a wellness benefit despite the consent of a statutory typical or an actual guardian. In specified a case, the authorisation of the custody court shall be required.’

The second provision is as follows: ‘If admission to a infirmary concerns a insignificant over the age of 16 or an adult who is completely incapacitated and able to consent, it is besides essential to get the consent of that person. In the event of conflicting statements concerning the admission to the psychiatric infirmary of that individual and his legal representative, the court liable for the place of residence of that individual shall accept admission to the hospital." In any of these cases (that is, in the event of a contradiction of statements made by an incapacitated individual completely and his legal guardian), the legislator requires the authorisation of the guardian court (yes: order of the Court of Appeal in Katowice of 17 May 2018, Act No V ACa 427/17).

Documents required for the application for inadmissibility

The application for incapacitation shall be accompanied by:

• proof of payment of the court fee,
• a summary copy of the matrimony or birth certificate of the applicant,
• copy of the summary certificate of birth or matrimony of the associate of the proceedings,
• the wellness certificate of the individual afraid by the application for incapacitation,
• copy of the application and all annexes to the participant, prosecutor, spouse of the participant

(yes: information on incapacitation of 33/K/UU/SO).

Fee on application for incapacitation

The fee on the application for incapacitation is PLN 100.
In view of the request for evidence from experts on the wellness position of the participant, the court shall charge the applicant an advance on that opinion.

Elements essential for a request for incapacitation

The essential elements of the request for incapacitation are:

• identification of the requested court,
• Name, address and PESEL,
• the name of the individual to be incapacitated, his address and another data,
• if the individual who is to be incapacitated remains in a marital relation ‒ the name of the spouse and his address (in cases where the applicant is not the spouse of the individual who is to be incapacitated),
• if the individual afraid has a legal typical (who is not the applicant) . . the name and address of the legal representative,
• identification of the kind of the letter by the words ‘Application for incapacitation’,
• the precise determination of the request by indicating whether the applicant requests partial or full incapacitation,
• an indication that the applicant belongs to a ellipse of persons who may apply for incapacitation,
• an indication of whether the participant's wellness enables him to appear in court personally for hearing,

(yes: information on incapacitation of 33/K/UU/SO).

Obtaining a copy of the civilian position act

A civilian position evidence may be obtained by any individual afraid and:

• her spouse,
• succession, introductory, siblings,
• statutory typical (for example parent) or guardian,
• a individual who demonstrates his legal interest in obtaining a copy (i.e. justifying the interest which derives from the provisions of the law and presenting the applicable documents, specified as the work of the court),
• court,
• Prosecutor,
• a social organisation, if justified by its statutory objectives and a social interest,
• a public administration institution (e.g. a municipality office), where essential to carry out its statutory tasks.

The cost of obtaining a copy of the civilian position act is (29 January 2023):

(yes: www.gov.pl)

Obtaining a medical certificate issued by a intellectual wellness practitioner of the individual afraid by an application for incapacitation

In accordance with Article 552(1) of the Code, if, according to the application, incapacitation is to be ordered due to intellectual illness or intellectual malformation, the court shall, before ordering the service of the application, request, within the prescribed time limit, presentation medical certificate issued by a psychiatrist the intellectual state of the individual afraid by the request for incapacitation, or the opinion of a scientist on the degree of intellectual disability of that person. If incapacitation is to happen due to drunkenness, the court besides requires the presentation of an anti-alcoholic treatment certificate, and if incapacitation is to happen due to drug abuse – a certificate from the treatment of addictions.

The court shall reject the application for inadmissibility where the content of the application or the papers attached to the application does not constitute a intellectual illness, intellectual malformation or another intellectual disorders of the individual afraid by the application for inadmissibility or if the requested certificate, opinion or certificate is not lodged, unless specified papers are not possible (§ 2).

Whereas Article 21(1) of the intellectual wellness Act states that a individual whose behaviour indicates that due to intellectual disorders he or she may straight endanger the life or wellness of another persons, or is incapable to meet the basic life needs, may besides be subjected to psychiatric examination without her consent.

The request for specified a test is stated by the psychiatrist’s doctor and, in the absence of assistance, another doctor. Before entering the examination, the individual examined or his/her statutory typical shall be informed of the reasons for the examination without his/her consent (paragraph 2).

About Temporary advisers in proceedings for incapacitation – read here

About partial incapacitation – read here