Vulnerable persons in Ukraine
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?
No, the legal system in Ukraine does not provide for lasting powers of attorney in case a person loses his legal capacity following an accident or illness.
- Why does your legal system not provide for lasting powers of attorney (e.g. public policty)?
Pursuant to article no. 63 of the Ukrainian Civil Code of 16/01/2003 no. 435-IV, it is the custodianship and guardianship authorities that appoint a custodian or guardian after the regional court establishes that a person has lost his/her legal capacity.
- Can the aim of a lasting power of attorney be achieved, even partially, by other legal means?
The aim of a lasting power of attorney can only be achieved by amending legislation. However, it can be achieved, albeit only in part, if prior to losing legal capacity, a person sets out his/her wishes in a private document, countersigned by a notary, designating a trusted person to be appointed as custodian either by the court or the competent authorities.
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?
No, the legal system in Ukraine does not provide for advance decisions in the foregoing cases.
Why does your legal system not provide for advance decisions (e.g. public policy)?
Under article 43 of the Act “on the fundamental laws in Ukraine concerning public health” dated 19/11/1992 no. 2801-XII, in case of legal incapacity of a patient, decisions regarding treatment have to be made by the patient or by a legal custodian (guardian). Advance decisions on treatment are not allowed.
Article 16 of the Ukrainian Act “on organ transplants and other human anatomical material” establishes that “any adult enjoying legal capacity may agree or disagree in writing on the donation of his/her organs in case of death. In the absence of such a statement, the organs of a capable adult who has died may be taken with the consent of the spouse or parents living with him/her until his/her death. The organs of a deceased minor lacking or having limited legal capacity may be taken with the consent of the minor’s legal representatives” (article 16, paragraph I of this law as amended by law no. 997-V (997-16) dated 27/04/2007).
A person is entitled to demand from scientific, medical or teaching institutions that his/her organs be donated following his/her death.
- Can the aim of an advance decision be achieved, even partially, by other legal means?
No. There are no other legal means.
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. The Ukrainian legal system does not allow you to propose in advance a trusted person as a guardian in case of future incapacity.
- Why does your legal system not provide for advance decisions (e.g. public policy)?
In accordance with article 63 of the Ukrainian Civil Code dated 16/01/2003 no. 435-IV, the custodianship and guardianship authorities appoint either a custodian or guardian after the regional court has established the person’s legal incapacity.
- Why does your legal system not provide for notarised powers of attorney (e.g. public policy)?
When a person is declared to have limited legal capacity, it is the competent municipal authorities or the court that appoint a guardian, generally chosen from among the person’s relatives.
The aim of a lasting power of attorney can be achieved in part, if prior to losing legal capacity, a person sets out his/her wishes in a private document, countersigned by a notary, to designate a trusted person to be appointed as guardian either by the court or the competent authorities.
4 - Which authority has international, territorial and material jurisdiction to appoint legal guardians?
The court and the municipal custodianship and guardianship authorities have 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.)?
Article 63 of the Ukrainian Civil Code provides for the appointment of one or more guardians, but Ukrainian legislation does not establish their fields of competence, that is to say they have the same rights and can deal with all aspects of a legally incapacitated person’s life.
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?
Guardians are subject to the supervision of the custodianship and guardianship authorities.
In accordance with article 69 of the Ukrainian Civil Code, the guardian of a person having limited legal capacity, has to see to the person’s care and assure necessary living conditions.
Pursuant to article 37 of the Civil Code, the guardian gives his/her consent to the legal transactions of his/her ward.
The guardian has to adopt measures to protect his/her ward’s rights and interests.
According to article 70 of the Civil Code, a guardian cannot give his/her consent to the conclusion of agreements between his/her spouse or his/her close relatives and the ward, excluding the transfer of ownership by means of a deed of gift or free use within the framework of a lending agreement.
Pursuant to article 71 of the Civil Code, the custodian has to mandatorily have the authorisation of the custodianship and guardianship authorities for certain legal transactions.
- Without the prior authorisation of the custodianship and guardianship authorities a custodian is not entitled to:
- waiver the ownership rights of his/her ward;
- issue written pledges on behalf of his/her ward;
- enter into agreements that will be subject to notarial authentication and/or registration by the State, including agreements on the sharing and exchange of real estate;
- enter into agreements concerning any other asset of value.
- The guardian is only entitled to give his/her consent to the transactions listed above, after having been duly authorised by the custodianship and guardianship authorities.
7 - Under the conflict-of-law rules in force, what substantive law is applicable to:
- lasting powers of attorney;
- advance decisions;
- requests made with regard to the guardian and/or circumstances of a guardianship?
The appointment of guardian and the end of guardianship are regulated by the law of the State where a person placed under guardianship resides permanently - art. 86 of the private international law code.
Has your Member state signed the Hague Convention of 13 January 2000 on the International Protection of Adults?
Ukraine has not signed the Hague Convention of 13 January 2000 on the International Protection of Adults.
Under what condition are the following foreign documents recognised in your Member State?
- lasting powers of attorney
- advance decisions
- powers of attorney to avoid the appointment of a guardian by the court
Lasting powers of attorney, advance decisions and powers of attorney to avoid the appointment of a guardian by the court are not provided for under Ukrainian law. As a result, any decision to appoint a custodian or guardian will be made by the court and the custodianship and guardianship authorities, in accordance with the rules of private international law, subject to compliance with public policy and the laws in force in Ukraine.
1 - Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?
- Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law? The determination of the law applicable to matters relating to custody and the legal representation of minors is regulated by the provisions of the Hague Convention and in particular articles 16 § 1 and 17, that provide for the application of the law of the country where the minor resides.Matters beyond the Hague Convention are governed by law no. 2709-IV “on private international law” dated 23.06.2005.
The rights and duties of parents and children are regulated by the Minors Act or the law that is more closely connected with family bonds, providing it is more favourable for the child”.
- Establishing and ending custodianship or guardianship of children, minors, legally incapacitated individuals and persons having limited legal capacity are governed by the Wards Act.
- The duty of a custodian or guardian to accept custodianship or guardianship is governed by the Act on persons appointed as custodians (guardians).
- Relations between the custodian (guardian) and his/her ward are governed by the law of the State, under the authority of which a custodian (guardian) has been appointed. If a person under custodianship (guardianship) resides in Ukraine, then Ukrainian law is applied, if more favourable for the person in question.
- The custodianship (guardianship) of Ukrainian nationals residing abroad will be recognised as valid in Ukraine, if a permanent consular post or diplomatic mission of Ukraine has no legal objections to this custodianship (guardianship) or to its recognition.
- As to a person residing in Ukraine, who however is not an Ukrainian national and does not own property in Ukraine, in accordance with the law in Ukraine measures to protect his/her rights and assets may be adopted in case of need and in the interest of the custodianship or guardianship. The diplomatic or consular mission of the State of which the person is a national will be notified immediately.
- Which authority has international and territorial jurisdiction concerning questions of custody? If the child’s permanent residence is in one of the States parties to the Hague Convention, then the judicial and administrative authorities of the contracting State where the child resides are competent and will adopt measures to protect the child or his/her assets at international level (article 5 of the Hague Convention).If the minor resides permanently in a State that is not party to the Hague Convention, then national rules of private international law will be applied. The courts and custodianship and guardianship authorities in Ukraine have jurisdiction over the establishment and ending of custodianship and guardianship, if the individual under custodianship or guardianship is an Ukrainian national or a resides permanently in Ukraine.
- Which authority has international and territorial jurisdiction concerning questions of representation?
As far as representation is concerned, the same rules applicable to international jurisdiction regarding custody are applied.
2 - Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?
In accordance with article 34 of the Ukrainian Civil Code, individuals become of age and gain full legal capacity as of age 18.
Persons aged below 14 are considered children. Their legal representatives - parents or custodians – perform legal transactions on their behalf – article 177 of the Ukrainian Civil Code.
Persons aged between 14 and 18 are considered minors. They can only perform legal transactions with the consent of their parents or custodians. However, minors can carry out minor, day-to-day transactions and spend their money to fulfil their everyday needs - article 31 and 32 of the Ukrainian Civil Code.
- Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?
Yes. In some cases, the Ukrainian Civil Code establishes that the legal capacity of a minor can be extended.
Pursuant to article 34 of the Ukrainian Civil Code, a minor may acquire full legal capacity in case of marriage.
In accordance with article 35 of the Ukrainian Civil Code, a person who has reached age 16 and has an employment contract, as well as a minor who is registered as the mother or father of a child may acquire full legal capacity.
A person who is 16 and wishes to engage in business can obtain full legal capacity.
- Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?
Yes, the legal capacity of a minor is extended on the basis of a decision of the custodianship and guardianship authorities, at the request of the minor concerned with the written consent of his/her parents (including adoptive parents) or custodian; however, even in the absence of said consent, a court may grant full legal capacity.
A minor wishing to engage in business has to be registered as an entrepreneur with the written consent of his/her parents (including adoptive parents) or the custodianship or guardianship authorities.
- List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.
- Pursuant to article 31 of the Ukrainian Civil Code: An individual who has not reached age 14 (child) has the right to:
- perform ordinary minor transactions.
A transaction is deemed ordinary if it satisfies the day-to-day needs of a person, fulfils his/her physical, spiritual or social developement needs and concern an inexpensive item;
- exercise his/her moral rights over the results of intellectual and creative activity protected by the law.
- perform ordinary minor transactions.
A child is not responsible for the damages he/she causes.
Besides the provisions under Article 31 of the Civil Code, article 32 establishes that a person aged between 14 and 18 (minor) has the right to:
1) use his/her earnings, grants or other revenue;
2) independently exercise his/her rights over the results of intellectual and creative activity protected by the law;
3) be a (founding) partner of corporate entities, unless prohibited by law or the incorporation documents of the legal entities;
4) sign a bank deposit contract (account) and dispose of assets (sums) deposited in his/her name.
2. The minor may perform other legal transactions with the consent of his/her parents (including adoptive parents) or guardian. As to legal transactions concerning vehicles or immovable property, a minor must have the notarised consent of his/her parents (adoptive parents) or guardian and the permission of the custodianship and guardianship authorities.
3. The minor may dispose of the sums deposited in his name either entirely or in part at a financial institution via others, with the consent of the custodianship and guardianship authorities and parents (adoptive parents) or guardian.
4. In order to carry out a transaction, a minor has to obtain consent from his/her parents (adoptive parents) or custodian and the custodianship authority in accordance with the law.
5. If there are sufficient reasons, the court may limit the minor’s right to dispose of his earnings, grants or other revenue or to deprive him/her of this right at the request of the parents (adoptive parents) or custodian or the custodianship authority. The court may revoke its decision to restrict or deprive the minor of this right, if the circumstances underlying this decision cease to exist.
6. The procedure to restrict a minor’s legal capacity is established by the Code of Civil Procedure of Ukraine.
3 - Who has the general right of custody of a minor?
Pursuant to article 141 of the Family Code of Ukraine :
- The mother and father have the right of custody over their child, regardless of whether they are married or not.
- Divorce or separation of parents does not affect the scope of their right of custody nor exempts them from their responsibilities towards their child.
If a minor does not have his/her parents, a guardian will be appointed who has the same rights and responsibilities as parents in protecting the minor’s assets and rights.
- What is the scope of the right of custody?
Custody is granted to assure a child’s the moral and property rights.
- Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?
In accordance with article 60 of the Ukrainian Civil Code, the court places a minor under custodianship or guardianship, if it determines that the child lacks parental care and appoints a custodian or guardian, on the proposal from the custodianship and guardianship authorities.
- On who’s proposal and when the decision on appointment of custody is made?
Anyone having learned that a person needs custodianship or guardianship can immediately notify the custodianship and guardianship authorities (art. 57 of the Ukrainian Civil Code).
Pursuant to art. 59 of the Ukrainian Civil Code, custodianship is established for orphan minors or minors lacking parental care.
- Is the competent authority free in its choice of a new custodian?
A custodian or guardian is generally chosen from among the minor’s relatives, based on personal ties and on whether the person can fulfil the duties of a custodian or guardian (art. 63 of the Ukrainian Civil Code).
When appointing a custodian for a child and a guardian for a minor, the ward’s wishes are taken into account.
- Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?
It is possible to appoint several custodians or guardians who will have equal right of custody over the minor.
- On who’s proposal and when the decision on appointment of custody is made?
3.3 How and by whom will the right of custody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?
In the child’s interest, the custodianship and guardianship authorities or the court may assign the right of custody to one person only, if the parents fail to reach an agreement on the matter. In this case, no difference is made between married and unmarried couples.
3.4 May the right of custody be transferred to another person by means of a power of attorney?
No. The law in Ukraine does not provide for the transfer the right of custody to another person by means of a power of attorney.
3.4.1 Is the consent of all custodians to the transfer mandatory?
3.4.2 Are there any restrictions to this type of power of attorney (for example the right of custody may not be transferred in its entirety)?
3.4.3 What are the formal requirements for this type of power of attorney?
4 - Who has the general right of legal representation of a minor?
- Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity) ?
- On who’s proposal and when is the decision on appointment of a legal representative made?
- Is the competent authority free in its choice of a new legal representative?
- Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?
- Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?
- Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?
- Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?
- Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
- the mother and/or father of a minor, who have applied for an authorisation, have been deprived of the right of custody by the court, pursuant to article 164 of the Ukrainian Family Code;
- the court, the custodianship authority or the public prosecutor have decided to take the child away from his/her parents (or the person who applied for the authorisation) without depriving them of the right of custody, pursuant to article 170 of the Ukrainian Family Code;
- the persons listed under article 165 of the Code have applied to the court to deprive the parents (or the person who applied for the authorisation) of their right of custody;
- a person applying for authorisation provided false information about himself/herself that is instead essential to grant or refuse authorisation;
- the child’s parents do not agree on a legal transaction concerning the child’s real estate;
- there are disputes between the child’s parents or between one of them and a third party regarding immovable property in relation to which the parents (or one of the two) have sought authorisation to conclude a transaction.
- the legal transaction will lead to a reduction in the scope of the child’s ownership rights and/or the infringement of the child’s legal interests.
5 - How can the custodian / representative prove his/her right?
The parents may prove their rights by submitting the child’s birth certificate or an extract of the civil register.
If the person having the right of custody is one parent, he/she proves his/her rights by submitting the court’s decision to deprive the other parent of the right of custody, or a certificate of death of the other parent or an extract of the family register where the child’s father is registered on the basis of the mother’s statements (e.g. if the father fails to recognise his paternity or if the mother does not know who the child’s father is).
Custodians or guardians prove theirs rights according to the decision of the custodianship and guardianship authorities or the court.
- Does the law provide some kind of document that gives evidence of the right of custody and/or representation?
There are no other documents besides does listed in section 5 above.
- Is there any other kind of document that proves the right of custody and/or representation?
No, there are no other documents.
6 - According to the national law, who is responsible for giving consent/permission/authorization for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?
A child aged below 16 travelling abroad without his/her parents can only be authorised with the consent of both parents (custodian, guardian). A minor is authorised to travel abroad alone with the consent of his/her parents after age 16.
- What are the requirements for the formal validity of such a consent/permission/authorisation?
The authorisation to travel abroad has to be authenticated by a notary and include the dates, country of destination and name of an accompanying person.