Vulnerable persons in Kosovo
1 - Does your legal system provide for lasting powers of attorney for persons who wish to nominate someone close to them as their guardian in case of loss of legal capacity owing to an accident or illness?
Yes, in principle, according to Articles of Family Law of Kosovo, to the person under custody the Custodian Body appointed the custodian, however, the custodian shall be in the first place appointed from among persons in the family of the person under custody, which means the wish of person to nominate someone close to them as a custodian. The Custodian Body shall decide whether this is in the interest of the person under custody.
a) Why does your legal system not provide for lasting powers of attorney (e.g. public policy)?
b) Can the aim of a lasting power of attorney be achieved, even partially, by other legal means?
- What is covered by the lasting power of attorney (administration of assets, custody rights, etc.)?
Article 244.in Family Law in Kosovo defines the duties of the Custodian:
- The custodian is especially obliged to take care in good faith of the personality and the rights and interests of the person under custody and to administer his property with care, as well as to inform the Custodian Body of the course of custody.
- The custodian is especially obliged, with the assistance of the Custodian Body, to make use of all necessary means of social welfare in order to ensure the material requirements needed for the enforcement of custody measures.
- Who may be appointed as legal representatives?
Custody (legal representative) for the person in custody in the first place appointed from among persons in the family of the person under custody, which means under the care of the person that he should appoint someone from the family circle. The Custodian will decide whether it is in the interest of custody.
- Must all representatives be approved, for example by a court?
Yes, approved by the Custodian as a competent body.
- May authorised representatives delegate authority to third parties?
Yes, authorized representatives can delegate authority to third parties.
- Under what conditions may lasting powers of attorney replace official guardianship?
According to article 242, Delegation of Obligations, of the Family Law of Kosovo. If the Custodian Body generally takes the role of a custodian or carries out special tasks of the custodian directly, it is authorized to entrust certain tasks to other professionals who can act on its behalf and under its supervision.
- Do powers of attorney have any legal effects before the loss of capacity occurs? Do they have effects after death?
Yes, the powers of attorney have legal effects before the loss of capacity occurs and they have effects after death.
- In what form must the power of attorney be drawn up?
The power of attorney drawn up in the form of decision, by the Custodian Body.
- Must/can lasting powers of attorney be recorded in a register?
Yes, in the article 268, foreseen Registration. The action for placing a person under custody and the action for the termination of custody shall be sent to the competent registrar within a time limit of 15 days after it has become legally effective. Legal effect is achieved, when decisions are issued. (2) If the person owns immovable property, action under Paragraph (1) of this Article is issued also to the competent body within the same term, for registration of this fact in public land registers.
2 - Does your legal system provide for an advance decision on medical treatment for persons who, as a result of an accident or illness, are no longer able to express their wishes with regard to undergoing or refusing medical treatment?
According to the provisions of the Family Law, the purpose of custody towards adults is to protect their personality and shall be manifested primarily with personal care, training for independent living and medication. The competent court is the one which issued such a decision, which is required within 10 days from the day the decision to convey to the Custodian Body, of which body within 30 days from the day the decision to provide custody.
a) Why does your legal system not provide for advance decisions (e.g. public policy)?
b) Can the aim of an advance decision be achieved, even partially, by other legal means?
- What is covered by the advance decision?
Acording to Article 266 - Procedure in the Family law of Kosovo, when the Custodian Body becomes aware that a person shall be placed under custody, it immediately undertakes all necessary measures to protect personal rights, the property and other interests of such a person and starts the procedure for placement, namely appoints the custodian, determines his obligations and the scope of his authority, respectively makes the decision to fulfill the obligation of a custodian directly. After the appointment the Custodian Body shall immediately entrust its obligations to the custodian.
- Must the advance decision be officially approved, if appropriate?
Yes, advance decision must be officially approved.
- Is the advance decision binding on medical staff and the patient's representatives?
The advance decision is binding on medical staff and the patient's representatives.
- In what form must the advance decision be drawn up?
The advance decision must be drawn up in the form of court decision.
- Must/can advance decisions be recorded in a register?
According to article 268 - Registration on FLK.
- The action for placing a person under custody and the action for the termination of custody shall be sent to the competent registrar within a time limit of 15 days after it has become legally effective. Legal effect is achieved, when decisions are issued.
- If the person owns immovable property, action under Paragraph (1) of this Article is issued also to the competent body within the same term, for registration of this fact in public land registers.
- Do regulations exist to resolve any conflict between an advance decision and a wish for organs to be donated expressed by the patient in another form (such as an organ donor card)?
To resolve any conflict between an advance decision and a wish for organs to be donated expressed by the patient in another form are by contesting in Court.
3 - Does your legal system provide for the right to request that a trusted person be named as guardian in case of future incapacity?
No. Custodian cannot be established for the future.
- Why does your legal system not provide for notarised powers of attorney (e.g. public policy)?
It is not foreseen by the Law on Family or that of Notary.
a) Is the request for a trusted guardian binding on the court/authority?
b) Does such a request require official approval?
c) Who may be appointed as guardian? May more than one person be named as legal guardian?
d) May more than one person be named responsible for the administration of assets and handling custody rights?
e) In what form must the request be drawn up?
f) Must/can such requests be recorded in a register?
4 - Which authority has international, territorial and material jurisdiction to appoint legal guardians?
5 - Is it usual practice to appoint several guardians, to deal with different matters (custody rights, administration of assets, etc.)?
6 - To what formal and material restrictions are legal guardians subject? Specifically, must they be officially approved? Must they have authorization from a court or authority to carry out certain legal acts?
The restrictions set forth in article 247 and 248 of the Family law, for what is required special permission from the Custodian body. According to the article 250, Request for Actions to be taken on FLK.
- The custodian, public prosecutor, commune in whose territory the person under custody is residing or domiciled, a relative to the person under custody, humanitarian organizations or non-involved third persons can make a request or proposal in any matter of custody to the Custodian Body, to undertake actions and measures of custody, required for the protection of interests of the person under custody.
- The applicants mentioned in Paragraph (1) of this Article may file a complaint to the second instance against a decision of the Custodian Body refusing custody measures and actions within a term of 15 days from the day of the decision.
7 - Under the conflict-of-law rules in force, what substantive law is applicable to:
- lasting powers of attorney?
Custody matters provided for by this Law are conducted and fulfilled by the Custodian Body defined in Article 6 in Family Law of Kosovo.
- advance decisions to refuse treatment?
Article 237. Exclusions from the Right of Custody One of the following persons cannot be a custodian: The person who has previously lost rights of legal or parental custody due to a court decision who fully or partially has lost the capacity to act. Whose interests are in obvious conflict with the interests of the person to be placed under custody. A person whose personal features or pecuniary interests may be in conflict with the interests of a custodian and where it is suspected that the relationship with the person under custody or natural parents may cause conflicts.
- requests made with regard to the guardian and/or circumstances of a guardianship?
Regarding article 238. Obligation to Accept Custody and Exceptions,
- Persons related by blood to the person to be placed under custody in direct linear ascendancy and direct linear decadency and brothers and sisters of the father or mother of the person under custody, are under the legal obligation to accept the task of a custodian if they comply with the requirements for a custodian under the provisions of this Law.
- Persons in blood relationship do not have the obligation to accept the task of a custodian if:
- they are under sixteen years of age;
- due to illness, body defects or type of profession or service they are not adequately capable to fulfill this task;
- they already took on the task of a custodian or if they already take care of two or more children;
- a mother who is considered for the task has a child under the age of seven and rejects the task for this reason
- the person already takes care of three or more minor children of his own.
- Has your Member state signed the Hague Convention of 13 January 2000 on the International Protection of Adults?
Kosovo as a new state has not signed the Convention.
- Under what condition are the following foreign documents recognised in your Member State?
- lasting powers of attorney
- advance decisions to refuse treatment
- notarised powers of attorney
In Kosovo the Court must recognize preliminarily the foreign decision.