Incapacitated Persons Research Articles

Prinsip Keadilan Terhadap Pengecualian Bagi Pelaku Tindak Pidana Yang Diancam Pidana Di Bawah 5 Tahun

The existence of limitations on criminal penalties of more than 5 years and incapacity in Article 56 paragraph (1) of the Criminal Procedure Code means that those who commit crimes with a penalty of less than 5 years are no longer required to be provided with legal advice. The objectives of this research are limiting the defense of assistance to perpetrators of criminal acts under 5 years in accordance with the criminal justice system, providing assistance to perpetrators who are under 5 years under the principle of justice, reformulating the provision of legal assistance for perpetrators under 5 years. in the future. This research uses doctrinal legal research methods. The method used is to study and analyze legal materials and legal issues related to legal developments and problems. Legal aid is everyone's human right, which is not only provided by the state and not as a mercy from the state, but is the state's responsibility in realizing equality before the law, access to justice, and fair trials. The provision of legal assistance only looks at the criteria that the person is an incapacitated person who has met the requirements. limitations or limitations but it is an obligation for the state which must provide legal assistance to all Indonesian people without exception.

Проблемные вопросы расторжения брака с недееспособным в судебном порядке

Marriage can be characterized as a connecting link that allows you to create a new cell in society. Undoubtedly, the state, as well as society itself, is interested in creating a strong and satisfying the general requirements of family ties, which will ensure full-fledged upbringing and socialization for the new generation. However, the disintegration of a family in modern times is a fairly common phenomenon that should not be characterized as something negative, because there are cases when the joint life of spouses becomes impossible. Of course, the forced preservation of this kind of relationship, which leads to an imbalance of the concept of "family" will violate the norms of morality and morality in general. In the current legislation, there are problems, primarily related to the dissolution of a marriage with an incapacitated person in court. So the legislator did not provide for some relations related to the procedure for the dissolution of a marriage by an incapacitated person: the procedural actions of the guardian of an incapacitated spouse. The author examines the process of dissolution of marriage with an incapacitated person, touches upon the problems associated with the activities of the guardian of an incapacitated person, determining shortcomings in legislative regulation and requiring the legal attention of the legislator. The procedural problems of the procedure for the dissolution of marriage with an incapacitated person were also identified and ways to solve them were proposed.

Prawne rozumienie powstania i ustania swobody woli

Free will is an essential legal idea that determines the nature of legal relations. Free will is essential for private law, as it shapes the mechanisms for entering into contracts, fulfilling obligations, the scope of civil capacity, adherence to the principles of discretion, voluntariness, fairness, etc. The purpose of the paper is to determine the dynamics of freedom of will and to provide a legal justification for the moment of its emergence and termination. The scope of free will is dynamic; it arises at birth and changes throughout life. The scope of free will is related to two main criteria: the level of intelligence and the scope of civil capacity. Minor children, people with limited civil capacity, and incapacitated persons have the lowest level of free will. The scope of free will also vary within a specific civil capacity. Free will may be temporarily suspended when someone is unaware of their actions. A complete, irreversible loss of free will occurs only in the event of death. From that moment on, a person ceases to be a party to legal relations and a legal person.

The Cynicism of Advocates as Law Enforcers: An Effort to Improve Yourself

The advocate profession is called a law enforcer by the Advocate Law, but at the implementation level there are limitations, when the presence of an advocate is limited to an incapacitated person who is threatened with a sentence of more than 5 years (vide KUHAP). This has become ingrained into a misguided understanding among society. Ironically, there is an assumption that advocates can be used or vice versa. In fact, it is clear that at each level there is room for lawyers to enter, from the level of investigation, fingerprinting, prosecution to fact testing at trial by the court. This writing specification is in descriptive form using juridical analysis on the basis of highlighting logical strategies as the main work methodology. This scribble is made to recognize applicable ideas, rules and principles by utilizing literature and positive law. Foundation of the Law on Advocates and KUHAP. Arriving at the conclusion, namely that it is difficult for advocates to be accepted as law enforcers because there is no intimacy either with regulations or with fellow enforcement officers, so it is difficult to make out intimately in law enforcement in abstracto with law enforcement in concreto. Cynicism towards advocates as law enforcers is limited to rights in the form of granting power of attorney. His presence is not an obligation in every case, what is very important at the initial stage is the process of making light of the incident with evidence which is often met with the need to meet the prosecutor's P21 "needs" to be served in the form of a "menu" of charges for the judge to taste so he can determine the value of a dish.

Participation of the Prosecutor in the Protection of the Interests of a Minor or an Incapacitated Person in Case of Refusal of a Legal Representative from Medical Intervention Necessary to Save Life

The article is devoted to the procedural and substantive role of the prosecutor, as a subject with public powers, exercising competence in the field of protecting the interests of a minor or a person recognized as legally incompetent, in case of refusal of a legal representative from medical intervention necessary to save life. The object of the study was a set of public relations in order to protect the rights of a minor or a person recognized as incapacitated if the consent of the legal representative for medical intervention necessary to save life is not accepted. As a result of the conducted research, the authors concluded that the participation of the prosecutor should be directed not only within the framework of judicial proceedings, but also pre-trial settlement of the disputed situation.

Support instruments for people in mental health crisis

The subject of considerations in the article are issues related to the problems occurring in the professional work of social workers, who, repeatedly, deal with interventions for people with mental disorders, who most often do not want to undergo treatment. Increasingly, families claim that the best solution would be to incapacitate such a family member. In addition, the draft act amending the Mental Health Protection Act assumes that doctors will put pressure on family members to use the incapacitation procedure. The aim of this article is to show that incapacitation should be a last resort and to present various forms of support and help for both the patient and family members. The basic research method was the dogmatic method, i.e., formal and legal, involving the use of the existing achievements of law science, which is based on the analysis of legal texts in this area. The assessment of this issue was subject to examination of the current legislation and courts decisions in this respect. Considerations on the necessity of incapacitation are presented in three parts. The first one discusses the importance of protection of health, including mental health, which is protected not only constitutionally, but also under other laws. The second part defines the essence of partial and total incapacitation, its process, entities that may apply for incapacitation. I present legal consequences for an incapacitated person as well as consequences for a person applying for incapacitation recklessly or in bad faith. I answer the question whether a register of incapacitated persons should be established. In the third part, I describe the procedure of application for admission to a psychiatric hospital, which may be carried out, inter alia, by a social worker, a wide range of financial, institutional and social work assistance that can be guaranteed by the social support body for the sick person, so that incapacitation is the extreme measure. The result of this article is to demonstrate that social assistance organisational units, including a social worker and families, have various instruments to support a person in a mental health crisis.

Incapacitation and real estate trading. A case study

Motives: Incapacitation is presented in the literature as an important legal device for protecting the rights of the persons concerned. At the same time, in some cases (such as legal transactions with foreign countries), the legal consequences of incapacitation seem to be disproportionate to the protected interests. This overview aims to present a short case study that highlights the differences in the interests, possible views and demands of the parties in transactions involving real estate owned by incapacitated persons. Aim: To initiate a debate on the degree of necessary legal protection in transactions involving real estate owned by incapacitated persons, and to analyze in a discursive manner the jurisdictional, procedural, and socioeconomic dimensions of a single problem in a short case study. Results: Depending on the context, incapacitation can be both a form of protection and a difficulty in particular civil cases involving parties with limitations or residing in different jurisdictions.

PEMBATASAN KRITERIA TIDAK MAMPU YANG WAJIB DIBERIKAN JASA HUKUM CUMA-CUMA OLEH NOTARIS BERDASARKAN PASAL 37 UNDANG UNDANG JABATAN NOTARIS

Article 37 of the Notary Office law mandates notaries to provide services free of charge to people who are in economically disadvantaged conditions. That is, this eligible party is not required to pay a fee. However, there are currently no rules that clearly define the criteria by which the degree of incapacity is measured. Therefore, setting standards to identify groups of people entitled to free services becomes complex. This study raises the issue of how the limitation of the criteria for free legal services against the provisions of Article 37 of the Notary Public Act? and how is the implementation of the provision of legal services to incapacitated persons? using Hans Kelsen's theory of legal effectiveness and Gustav Radbruch's theory of legal certainty. The method used in this study is normative legal research is legal research literature or secondary data with sources of primary, secondary and tertiary legal materials. The approach used legislation approach, case approach, conceptual approach and analytical approach. And legal material collection techniques are carried out by identifying and inventorying positive legal rules, book literature, journals and other legal material sources, for legal material analysis techniques (interpretation) grammatical interpretation, systematic interpretation and legal construction methods. Based on the results of existing research, it was revealed that there are no official provisions that limit notaries in providing services to the underprivileged. This decision depends entirely on the personal ethics of notaries who are influenced by conscience, given their position as officials. In practice, notaries as usual serve all clients, including those in need of legal assistance in the field of notarization, with the notary's personal consideration of whether the free service is appropriate for the case at hand.

Human dignity and researcher conduct in emergency care research with incapacitated adults

Emergency care research sometimes involves incapacitated adults as research participants. The ethical principle of respect for autonomy may not necessarily apply to an incapacitated person unable to act in an autonomous manner, although it can be argued that researchers still have a duty of respect towards such people because they have moral status despite being incapacitated. Sharing some common ground with theories of moral status based on ‘humanness’ and the ability for rational thought is the notion of human dignity, which features in arguments regarding researcher conduct with incapacitated patients. However, human dignity premised upon the unique ability of humans for rational thought and moral self-regulation is contingent upon these capabilities – a limitation that possibly makes dignity a less useful framework for research conduct in emergency care research. In this article, I will discuss the different conceptions of human dignity – as equality, status and virtue – and then draw on more recent literature that explains human dignity as a social constraint and as a factor influencing the conduct of healthcare professionals and researchers. I will address questions of whether dignity as a principle ought to apply only to those who have the ability to think rationally, or to all humans regardless of their condition or mental status. I will argue that, in relation to offering protection to research participants in emergency conditions, it is immaterial which view is taken.

About the system of institutions providing social services to persons affected by human trafficking

The article examines the system of providing social services for persons affected by human trafficking. Based on the analysis of legislative norms, the necessity of making changes and additions to the Law of Ukraine «On combating human trafficking» is substantiated.It is proposed to set out Art. 17 of the Law of Ukraine «On Combating Human Trafficking» in terms of ensuring the rights of persons who have suffered from human trafficking in the following wording: “In order to ensure the realization of the rights provided for by this Law, persons who have suffered from human trafficking may be referred to one of the existing networks centers of social services, centers of social service (provision of social services), centers of social and psychological assistance. The conditions of stay and provision of services to persons affected by human trafficking by the existing network of social service centers, territorial centers of social services (provision of social services), centers for social and psychological rehabilitation of children and shelters for children, centers of social and psychological assistance are regulated by the provisions of the specified institutions . Social services are provided free of charge only with the consent of the injured person or an incapacitated person - with the consent of the body of guardianship and guardianship in the event that such a person has not been appointed a legal representative. The content and scope of social services for each affected person is determined individually depending on their needs and is specified in the contract on the provision of social services in accordance with the standards for providing social services to affected persons, which are approved by the central executive body, which ensures the formation of state policy in the field of prevention and counter-trafficking people, taking into account the requirements of international legal acts». Also taking into account the fact that in Ukraine, persons with disabilities are particularly vulnerable to falling into the situation of human trafficking; persons with injuries, serious illnesses or health disorders (especially mental); elderly people and teenagers; members of lowincome families; representatives of national minorities [3], in our opinion, it is also necessary to resolve the issue of the involvement of guardianship and care authorities for incapacitated persons in the event that such a person has not been appointed a legal representative. The provisions of the Law of Ukraine “On Prevention and Combating Domestic Violence” dated 07.12.2017 No. 2229-VIII can serve as an example, in particular, Article 17 of this act.

THE SOCIO-ECONOMIC ROLE OF LOCAL GOVERNMENTS IN THE FIELD OF GUARDIANSHIP AND CONSERVATORSHIP OF ADULTS IN UKRAINE

Based on the content of Article 55 of the Civil Code of Ukraine, the task of guardianship and conservatorship of adult incapacitated persons and persons with limited legal capacity – is to ensure the personal non-property and property rights and interests of such persons, and as practice shows, there are currently a significant number of problems. The relevant problems are, inter alia, of a social and economic nature and affect a large number of subjects, with a special role being assigned to local self-government bodies, whose executive bodies, according to the definition of Ukrainian legislation, are guardianship and conservatorship bodies. This problem has a significant negative impact on the quality of life of adults in need of care and assistance, as well as on the exercise of relevant powers by local authorities. The above testifies to the usefulness of the study of the socio-economic role of local self-government bodies in the field of guardianship and conservatorship of adult incapacitated persons and persons with limited legal capacity. In this regard, an attempt was made to characterize the legislative basis and practical organization of the activities of local self-government bodies during their performance and powers of guardianship and conservatorship of adults, to determine and analyze the relevant duties, which, according to the results of the study, are proposed to be classified into three main groups (ensuring, protecting and defending the rights and legitimate interests of adults in need of guardianship and conservatorship; controlling and supervising the activities of guardianship and conservatorship entities (guardians, conservators and special institutions); controlling and supervising the preservation and management of property of persons under guardianship and conservatorship).

Ethics Considerations in Laws Restricting Incapacitated Patients' Access to ECT.

Electroconvulsive therapy (ECT) is a safe and effective treatment used for numerous psychiatric conditions. While many patients for whom ECT is indicated are able to give voluntary informed consent, some lack decision-making capacity (DMC), at least temporarily. Case reports from numerous countries involving ECT for patients who lack DMC indicate overall positive outcomes and high patient satisfaction with results comparable with those of consenting patients; some patients regain DMC with ECT. Laws and regulations pertaining to ECT vary widely around the world and across the United States. Many United States jurisdictions over-regulate ECT relative to other interventions with comparable risks and potential benefits. While laws restricting whether and under what circumstances patients who lack DMC may receive ECT likely are aimed at protecting incapacitated persons, such laws sometimes undermine important ethics obligations and should be re-evaluated.

Prospects for legislative support in the field of guardianship and care of adults in Ukraine

In the article, the author noted a wide range of normative legal acts, which contain norms and provisions regulating legal relations in the field of guardianship and care of adult incapacitated persons and persons whose legal capacity is limited. At the same time, it has been criticized due to the presence of gaps, inconsistencies and contradictions, which in turn significantly negatively affects the practice of implementing the relevant legislation and, as a result, the quality of life of the specified categories of persons and the level of security of their rights, legitimate interests and needs. The lack of statistical data on the direction of research is noted, which significantly complicates the analysis of the situation in the direction under study. In addition, in the opinion of the author, the priority directions of state policy regarding the improvement of legislative regulation of the sphere of guardianship and care of adults are highlighted, which include the need for: in-depth study of the problems of incapacitated persons and persons whose legal capacity is limited; research of the best international experience in this field and consideration of the possibility of its implementation in national practice; creation of the necessary legal framework; ensuring the formation of public awareness regarding the positive perception of the specified categories of the population. The importance of the draft Law of Ukraine «Basics of the legislation of Ukraine on the guardianship and care of adult incapacitated persons and persons whose legal capacity is limited, their social protection» developed and submitted to the Verkhovna Rada of Ukraine at the time was noted, and the Government's decision to withdraw this draft law, which was destructive for the field under study, was noted. Finally, a list of issues in the field of guardianship and care of adults that need urgent solutions is given, in particular, regarding the formation of a conceptual apparatus; determination of the principles of guardianship and care over such persons and subjects of administration in this area; determination of legal statuses of guardianship and guardianship bodies, incapacitated persons and persons whose legal capacity is limited, guardians and custodians; regulation of the procedure for keeping records of adult persons who are under guardianship and care, as well as the issue of ensuring their property rights, etc.

Legal characteristics of subjects who exercise guardianship and care of incapacitated persons and persons with limited capacity

Legal characteristics of subjects who exercise guardianship and care of incapacitated persons and persons with limited capacity

Ubezwłasnowolnienie całkowite osoby starszej

The analysis performed in the article refers to the elderly who have been subjected to the institution of total incapacitation, in the context of selected effects of this legal institution. The article identifies some legal consequences of the institution of incapacitation, which seem to be the most important in the area of civil law, and at the same time severe for the elderly. The main one being the deprivation of the incapacitated person's full legal capacity, and the related consequences – deprivation of the incapacitated person's ability to make a will and deprivation of the possibility of marriage by an elderly person. Conclusions were formulated that the institution of total incapacitation is not an appropriate legal tool to protect the rights and interests of older people, and its consequences interfere too much in the legal sphere of these people. In addition, the existing legal system adequately protects the elderly. On the other hand, in the “operational area”, it is necessary to consider introducing an institution that will support a third party in civil law transactions, including representation and correction of defective actions performed by them.

Authorities and competence of local government bodies in the field of guardianship and care of adults in Ukraine

This article describes the powers and competence of local self-government bodies in the field of guardianship and care of adults in Ukraine. The existing legislative regulation of the organization and activity of local self-government bodies as bodies of guardianship does not fully resolve the issue of determining the legal status of such bodies in general and their socio-economic role in the researched area in particular. Guardianship and guardianship bodies remain impersonal and undefined in the structure of local state authorities and local self-government bodies, which is a significant obstacle on the way to achieving the goal of guardianship and guardianship. The legislative basis and practical organization of the activities of local self-government bodies during their exercise of powers of guardianship and care over adults are characterized. Relevant duties have been defined and analyzed, which, based on the results of the study, are proposed to be classified into three main groups: 1) to ensure, protect and defend the rights and legitimate interests of adults who need guardianship or care; 2) from the control and supervision of the activities of other than the guardianship and guardianship bodies of subjects of guardianship and guardianship (guardians, custodians and special institutions); 3) from control and supervision of property preservation and property management of persons under guardianship and care). One of the economic components of the role of local self-government bodies in the person of their executive bodies in the context of the issue of guardianship and care of adult incapacitated persons and persons whose legal capacity is limited is the exercise of relevant powers by employees of these bodies at the expense of salary funds without additional payments purely for the management of guardianship matters and care of adults. Based on the content of the powers of the guardianship and guardianship bodies, these bodies, in the manner determined by them, must also control the guardianship and guardianship of adults by special institutions.

Incapacitated person as an employee. Part 2

The issue of establishing an employment relationship by a completely incapacitated person has been one of the most controversial in the Polish labour law literature for years. Despite the ratification in 2012 of the UN Convention on the Rights of Persons with Disabilities (hereinafter: the Convention), many authors up till now take the position that total incapacitation deprives a person of the so-called working capacity, and thus prevents such a person from concluding an employment contract, or results in the termination of a binding employment relationship. This article shows that such a position cannot be approved, as it leads to an unauthorized restriction of the constitutional rights of completely incapacitated persons and totally contradicts the prohibition of discrimination against persons with disabilities. The article in question shows the incorrectness of this position, both in relation to the existing employment relationship of the incapacitated person and to taking up new employment. The paper analyses also an impact of total and partial incapacitation on the possibility of terminating the employment contract as well as the form of its conclusion.

Incapacitated person as an employee. Part 1

The issue of establishing an employment relationship by a completely incapacitated person has been one of the most controversial in the Polish labour law literature for years. Despite the ratification in 2012 of the UN Convention on the Rights of Persons with Disabilities (hereinafter: the Convention), many authors up till now take the position that total incapacitation deprives a person of the so-called working capacity, and thus prevents such a person from concluding an employment contract, or results in the termination of a binding employment relationship. This article shows that such a position cannot be approved, as it leads to an unauthorized restriction of the constitutional rights of completely incapacitated persons and totally contradicts the prohibition of discrimination against persons with disabilities. The article in question shows the incorrectness of this position, both in relation to the existing employment relationship of the incapacitated person and to taking up new employment. The paper analyses also an impact of total and partial incapacitation on the possibility of terminating the employment contract as well as the form of its conclusion.

Соціальний капітал вінничан у формуванні приватного житлового фонду Вінниці доби непу

Мета роботи. На основі загальної характеристики приватного житлового фонду Вінниці доби непу дати відповідь на питання: «Що відбувалося із соціальним капіталом вінницької громади в нових радянських суспільно-політичних умовах?». Методологія. Теоретичною основою статті є погляди Дж. Коулмена на соціальний капітал як результат вільної та раціональної діяльності індивідів для досягнення власної вигоди. Наукова новизна. Охарактеризовано приватний житловий фонд Вінниці доби непу, що складався з денаціоналізованої та новозбудованої частин. Розглянуто ступінь оприявнення соціального капіталу вінницької громади на прикладі формування приватного житлового фонду міста. Висновки. За доби непу вінницькі практики вирішення житлової кризи підтвердили активність соціального капіталу міської громади, попри зміни суспільно-політичного ладу. Необхідність вирішувати життєво важливу проблему всіх пересічних вінничан привела до консенсусу між владою та громадою. У місті досить швидко та раціонально пройшла денаціоналізація житлового фонду, влада виділила значну кількість земельних ділянок для приватного будівництва, а забудовники емпірично визначили критично можливу межу розмірів індивідуальної забудови, щоб уникнути 10 % натурального житлового податку. Приблизно 80 % міських житлових приміщень доби непу можна прив’язати до приватних ініціатив (разом із приблизно десятком кооперативних будинків). На відміну від лівобережних та південних промислових міст України, де розвивалося активне державне та відомче будівництво, вінничани могли розраховувати лише на себе. Вони продовжували підтримувати міцні горизонтальні соціальні зв’язки, що підтверджується числом успішних рішень про денаціоналізацію житла, практиками виживання «колишніх» і «позбавленців», які ніби розчинялися в приватному секторі від пильності влади, а також будівництвом за допомогою толоки.

The Subject of Persistent Failure to Perform Duties Related to the Care of a Child or a Person under Guardianship or in the Custody (Art. 166 of the Criminal Code of Ukraine)

The article is devoted to the study of the subject of the crime under Art. 166 of the Criminal Code of Ukraine. The subject of this crime has been identified as special. Its general (obligatory) and special (additional) features are found out. The general (obligatory) features include the following: a natural person, a sane person who has reached the age of sixteen. It is substantiated that special (additional) features of the subject of this crime characterize his social role and relationship with the victim. The social role is to take care of the child or the person under guardian- ship or custody. The subject has a family relationship with the child, and a custody or guardianship relationship with the incapacitated person. Scientific approaches to determining the range of subjects of this crime have been studied and their differences have been identified. The article clarifies and analyzes the types of special subject of the crime under Art. 166 of the Criminal Code of Ukraine. Depending on the person in need of care, they are divided into two groups. The first group includes subjects with responsibilities for the care of the child and the family nature of
 the relationship between them. These are parents, adoptive parents, guardians, trustees, foster carers, foster parents, foster parents or actual caregivers. The second group includes entities that have responsibilities for the care of a person with limited capacity (incapacity) and are in a relationship with them in custody (guardianship) - guardians, trustees, officials of guardianship and trusteeship, heads of health care facilities or social protection.
 The case law on the application of Art. 166 of the Criminal Code of Ukraine (2010-2021). Based on this, it was concluded that the perpetrators of the crime are mostly parents of the child, only in isolated cases - adoptive parents and guardians.