Analysis of conceptual differences in the subjective composition of guardians (trustees) of adults with disabilities under civil law of Ukraine, France and Switzerland

Abstract

The article is devoted to a comparative analysis of the provisions of the current civil legislation of France, Switzerland and Ukraine with a view to identifying a balanced approach to the appointment of persons who may act as guardians and trustees over adults with disabilities who have persistent mental illnesses and, as a result, are unable to realize the significance of their actions and control them. The need to conduct this study is caused by the presence of certain problematic issues in the domestic legislation of Ukraine and the obligations assumed by Ukraine as a state party, which signed and ratified the UN Convention on the Rights of Persons with Disabilities on December 16, 2009. The UN Convention on the Rights of Persons with Disabilities of 13.12.2006. Article 12 of the said Convention contains provisions on equality of all persons with disabilities before the law and their equal legal personality. Thus, the participating States are obliged to review and bring their domestic legislation in line with the requirements of the Convention in order to restore the optimal mechanism for persons with disabilities, including those with persistent mental illness, to exercise their legal capacity. Based on the analysis of the provisions of the current civil legislation of France, Switzerland and Ukraine, the author identifies differences in the approach to the appointment of guardians and trustees over adults. These include, in particular, the possibility of performing the powers of a guardian (trustee) not only on a private but also on a professional basis in Switzerland; appointment of a guardian exclusively of individuals, following the example of Switzerland or individuals and legal entities in France, but in the case of a legal entity, it cannot assign the powers of a guardian to the head of the institution where a person with a disability receives medical, educational or other services. This must be a separate structure within the said legal entity. This prohibition is intended to avoid the possibility of abuse of power by the heads of specialized institutions and violation of the rights of their wards.