Declaration of Incapacity: Procedure, Documents and Guardianship under Kazakhstan Law

Usually people come with this question when a relative, because of a mental disorder, has stopped understanding the meaning of their actions or controlling them: managing money, signing documents, disposing of property. Relatives look for a way to lawfully protect them and the property they have kept. This is what the procedure for declaring a person incapacitated exists for. In this article we will look at who can initiate it, how, and what happens after the court decision.

The expert examination, the participation of the prosecutor and the guardianship authority, formalising guardianship and disposing of the ward's property require separate explanation. We will also look at when the status can be reviewed. The material is based on the Civil Code of the Republic of Kazakhstan and the Civil Procedure Code of the Republic of Kazakhstan. It will help you understand the logic of the process and gather the necessary documents in advance.

Declaration of Incapacity: What It Means for the Family

Under the Civil Code of the Republic of Kazakhstan, a citizen who, as a result of a mental disorder, cannot understand the meaning of their actions or control them may be declared incapacitated by a court, and guardianship is established over them. This is a legal status, not a medical diagnosis, and it arises only by a court decision. Until the decision takes effect, the person retains full legal capacity. The procedure takes place with the mandatory participation of the prosecutor and the guardianship authority.

All legally significant actions for an incapacitated person are performed by the guardian: managing income, paying for treatment and maintenance, representing interests in banks, state bodies and court. Transactions concluded by an incapacitated person on their own are, as a general rule under the Civil Code of the Republic of Kazakhstan, invalid. This is not a deprivation of care but a transfer of responsibility to the guardian.

• transactions for an incapacitated person are performed only by the guardian, and independent transactions are invalid
• disposal of the ward's significant property requires the consent of the guardianship authority
• the guardian reports to the guardianship authority on the ward's income and expenses
• personal non-property rights, including contact with relatives, are preserved
• if the condition improves, legal capacity may be restored through the court and guardianship terminated

Who may file an application to have a person declared legally incapable

The circle of persons entitled to initiate proceedings to have a citizen declared legally incapable is defined by the civil procedural legislation of the Republic of Kazakhstan. The application is filed with the court at the citizen's place of residence, and the case is heard in special proceedings with a mandatory forensic psychiatric examination. The list of attachments and the scope of information about the person's health depend on the applicant.

The right to apply is held by family members and close relatives — spouse, parents, children, brothers and sisters — as well as the guardianship and curatorship authority and the organisation providing psychiatric care. The exact list of applicants is set out in the Civil Procedure Code of the Republic of Kazakhstan; living together with the citizen is not a condition. Close relatives state information about the mental disorder, confirm it with medical documents and justify the need for guardianship.

Grounds for declaring a person legally incapable: mental disorder and inability to understand one's actions

Under the Civil Code of the Republic of Kazakhstan, a citizen who, as a result of a mental disorder, cannot understand the meaning of his or her actions or control them may be declared legally incapable by a court; guardianship is established over him or her. The grounds consist of two elements assessed by the court together: the medical element — the presence of a mental disorder, and the legal element — the loss of the ability to understand the meaning of one's actions or to control them.

The diagnosis alone does not entail loss of legal capacity. A disorder constitutes legal incapacity only when it is so pronounced that it deprives the person of the ability to be aware of the nature and consequences of his or her actions or to control his or her behaviour; this refers to a persistent condition, not a temporary episode. The wording "does not understand his or her actions" means the inability to be aware of what is being done or to keep behaviour under control. This is assessed on the actual circumstances: domestic, property-related, medical. Until the court decision enters into force, the citizen has legal capacity. The court assesses when the disorder arose, the stability of the condition, its effect on daily life and the ability to protect one's interests. Establishing legal incapacity protects the citizen and his or her property from disadvantageous transactions.

• the presence of a mental disorder confirmed by medical documents
• the inability to understand the meaning of one's actions or to control them
• the persistent nature of the disorder, rather than a temporary state
• the loss of the ability to independently enter into transactions and protect one's interests
• the establishment of guardianship over the citizen after the court decision enters into legal force

Procedure for declaring a person legally incapable: from filing an application to the court decision

The procedure for declaring a person legally incapable is a special court procedure under the Civil Procedure Code of the Republic of Kazakhstan: only a court can declare a citizen legally incapable. The case may be initiated by family members, close relatives, the guardianship and curatorship authorities and the medical organisation providing psychiatric care. The application is filed at the citizen's place of residence, and if he or she is placed in a psychiatric (psychoneurological) organisation — at its location.

Documents on kinship or authority and information about the citizen's mental state are attached to the application; if the application does not set out circumstances indicating a mental disorder, the court leaves it without movement and proposes that the defects be remedied. A forensic psychiatric examination is mandatory, and its findings form the basis of the decision. The case is heard with the participation of the prosecutor and a representative of the guardianship and curatorship authority; the citizen is summoned if his or her state of health permits, and the question of personal participation is decided by the court. On the basis of the outcome, the court grants the application or refuses it.

• Collecting documents on kinship, family status and the citizen's state of health
• Preparing and filing the application with the court at the citizen's place of residence or location
• Review of the application by the judge and appointment of a forensic psychiatric examination
• Hearing of the case with the participation of the prosecutor and the guardianship and curatorship authority
• Delivery of the decision and its entry into legal force
• Appointment of a guardian by the guardianship and curatorship authority after the decision enters into force

What documents are needed to declare a person legally incapable: list and requirements

An application to have a citizen declared legally incapable is filed with the court at the place of his or her residence, and if the person is in a medical organisation providing psychiatric care, at the place where that organisation is located. Under the Civil Code of the Republic of Kazakhstan, a citizen who, as a result of a mental disorder, cannot understand the meaning of his or her actions or control them may be declared legally incapable by a court; guardianship is established over such a person.

The basis is evidence of a mental disorder: extracts from the medical record, psychiatric reports, certificates confirming registration with a medical institution, and the results of an inpatient examination. If the applicant cannot obtain the medical documents independently, the court, on his or her motion, will request them from the medical organisation.

• a copy of the identity document of the applicant and of the person in respect of whom the question is raised
• copies of documents confirming kinship or the applicant's status
• medical documents: extracts, certificates, psychiatric reports
• a certificate of place of residence and family composition
• a document confirming payment of the state duty, if it is required

A mandatory stage is the forensic psychiatric examination ordered by the court.

The key question in such cases is not the diagnosis itself, but the person's ability to understand the meaning of their actions and to control them. That is precisely what the examination is aimed at.

Forensic psychiatric examination in proceedings for declaring a person incapable

The court considers a case for declaring a person incapable under the special proceedings of the Civil Procedure Code of the Republic of Kazakhstan, with the appointment of a forensic psychiatric examination. In such cases it is appointed as a mandatory measure, not only where the court has doubts; if the citizen clearly evades the examination, the court may, under the Civil Procedure Code of the Republic of Kazakhstan, decide on referring them for it.

The examination establishes the nature and degree of the mental disorder and the person's ability to understand the meaning of their actions and to control them. The experts assess medical documents, medical history, the results of the examination and the clinical interview. The questions are formulated by the court and concern the mental state at the time the case is considered.

• Whether the person suffers from a mental disorder and which one.
• Whether, given their mental state, they can understand the meaning of their actions.
• Whether they are able to control their actions.
• Whether the person can take part in the court proceedings and give explanations.

Declaration of incapacity: the role of the prosecutor and the guardianship authority in the proceedings

A case for declaring a citizen incapable is considered by the court under special proceedings. Under the Civil Code of the Republic of Kazakhstan, a citizen who, as a result of a mental disorder, cannot understand the meaning of their actions or control them may be declared incapable; guardianship is established over them. The participation of the prosecutor here is mandatory.

The prosecutor gives an opinion on the merits of the case after the evidence has been examined, and has the right to review the case file, to file motions for a forensic psychiatric examination to be appointed and for additional information on the person's state of health to be requested.

Declaration of incapacity: timeframes for consideration and procedure for appealing the decision

A case for declaring a citizen incapable is considered under the special proceedings of the Civil Procedure Code of the Republic of Kazakhstan: there is no dispute over a right, a legal fact is established. The application is filed at the citizen's place of residence, and if they have been placed in a psychiatric organisation, at its location. A forensic psychiatric examination is mandatory, and on the basis of its findings the court assesses the person's ability to understand the meaning of their actions and to control them.

The timeframes are determined by the general rules of civil procedure: after the application has been accepted and preparation carried out, including the examination, the case is set down for hearing and considered within the period established by the Civil Procedure Code of the Republic of Kazakhstan. During the examination, especially an inpatient one, the court may suspend the proceedings. The applicant, the citizen, the prosecutor and the representative of the guardianship and curatorship authority are notified of the hearing.

• the application is filed at the citizen's place of residence or at the place where they are staying in a psychiatric inpatient facility;
• the court appoints a forensic psychiatric examination, and the timeframes for consideration depend on how it is conducted;
• the prosecutor and the guardianship and curatorship authority are involved in the proceedings;
• the decision takes effect after the period for appeal has expired;
• the appeal is filed through the court of first instance;
• the reversal of the decision entails the termination of guardianship and the restoration of legal capacity.

Guardianship over an incapable person: who is appointed and how to arrange it

The basis for guardianship is a court decision declaring a citizen incapable as a result of a mental disorder. Guardianship is arranged through the local executive body at the place of residence of the person under guardianship. The application is filed by the future guardian or by the administration of the institution where the citizen is staying. The guardianship authority checks the living conditions and adopts an act on the appointment.

The requirements for a guardian are set by the Civil Code of the Republic of Kazakhstan and the Code of the Republic of Kazakhstan on Marriage (Matrimony) and Family: full age, legal capacity, and the absence of circumstances that the law treats as an obstacle: deprivation of parental rights, a criminal record for certain intentional offences, or illnesses that prevent the performance of a guardian's duties. The person's moral qualities, health, closeness of kinship and the candidate's willingness are taken into account. The guardian acts on behalf of the person under guardianship without a power of attorney and takes care of their maintenance and care.

• application for appointment as guardian;
• copy of identity card and IIN;
• certificate of the candidate's state of health;
• information on income and place of residence;
• certificate of no criminal record;
• consent of family members living together.

Rights and obligations of a guardian of an incapacitated person: transactions and disposal of property

The scope of the guardian's powers is determined by the court decision recognising the person as incapacitated and by the act establishing guardianship. The guardian represents the ward in all civil-law relations, including transactions and management of income, and acts on the ward's behalf without a power of attorney, since the ward is unable to understand the meaning of their actions or control them.

Transactions are carried out for the following purposes: the ward's maintenance, payment for treatment, purchase of necessary items. Small household transactions and actions exclusively to the ward's benefit are carried out by the guardian independently. Disposal of immovable property, vehicles and other valuable property, and waiver of the ward's rights require the prior permission of the guardianship and trusteeship authority; without such consent, these transactions may be declared invalid on the claim of interested persons.

• to carry out transactions on behalf of the ward that go beyond household matters and are aimed at reducing the ward's property, without the consent of the guardianship authority
• to dispose of the ward's immovable property, vehicles, securities and other significant property without the prior permission of the guardianship and trusteeship authority
• to gift the ward's property and enter into other gratuitous transactions on the ward's behalf
• to use the ward's income for the guardian's own needs rather than for the ward's maintenance and treatment
• to represent the ward in transactions with the guardian personally and in other cases where the interests of the guardian and the ward conflict
• to dispose of the ward's property after the termination of guardianship without preparing a report and transferring the property

Restoration of legal capacity and recognition as incapacitated: when the status can be reviewed

Under the Civil Code of the Republic of Kazakhstan, a citizen who, as a result of a mental disorder, cannot understand the meaning of their actions or control them may be recognised by a court as incapacitated, and guardianship is established over them. The status is not for life: the law allows for the restoration of legal capacity if the grounds that led to the restriction no longer apply. Restoration is possible where there is a sustained improvement in health, when the person is again able to understand the nature of their actions and control them.

Recognition as having legal capacity through the court takes place on the application of the persons named in the Civil Procedure Code of the Republic of Kazakhstan: the guardian, family members, an organisation providing psychiatric care, the guardianship and trusteeship authority. The case is considered with the mandatory participation of the prosecutor and a representative of the guardianship authority, and with a forensic psychiatric examination. The decision recognising a person as incapacitated may itself be reviewed under the general procedure for appealing judicial acts or on newly discovered circumstances.

• improvement in mental state confirmed by medical documents;
• errors in the initial court decision, circumstances that were not taken into account;

Review of status is permitted where an improvement in health or errors in the initial decision are confirmed.