Legal capacity and mental Illness
In the legal system of the Republic of Croatia, there is no direct statutory definition of legal (business) capacity. Instead, the Obligations Act defines legal capacity as a person’s ability to create legal effects through their own declaration of will, and it provides that legal capacity is acquired upon reaching the age of majority. Legal capacity therefore represents the foundation for independent participation in legal transactions. However, in the case of persons with mental illnesses or other impairments affecting their ability to reason, the question arises as to the extent to which they are able to make legally valid decisions.
Deprivation of legal capacity
Natural persons lose their legal capacity upon death, but they may also lose it through a court decision rendered in non-contentious proceedings, based on a constitutive decision on the deprivation of legal capacity, under the conditions and in the manner prescribed by law.
Proceedings for the deprivation of legal capacity are conducted as non-contentious proceedings and are governed by the provisions of the Family Act. In such proceedings, the court may partially deprive an adult person of legal capacity if, due to mental disorders or other reasons, the person is not capable of taking care of certain of their rights, needs, or interests, or if their conduct endangers the rights and interests of other persons.
Full deprivation of legal capacity is permitted only exceptionally, and only where this is of particular importance for the protection of the rights and interests of an adult person who is unable to establish meaningful contact with others or to express their will.
Before rendering its decision, the court is obliged to obtain an expert opinion from a court-appointed expert of the appropriate medical specialty. This opinion must address the person’s state of health and the impact of that condition on their ability to protect specific rights or groups of rights, as well as any potential endangerment of the rights and interests of others. The expert opinion forms the basis for the court’s decision on whether a particular person should be deprived of legal capacity.
If the court finds that the motion for deprivation of legal capacity is well-founded, it will specify in its decision the acts and legal transactions that the person is not capable of undertaking independently, separately in relation to personal status and property.
Acts relating to personal status include, among others, making declarations or undertaking actions concerning a change of personal name, the conclusion or dissolution of marriage, parenthood, decisions on health care, place of residence or stay, employment, and other similar matters, unless otherwise provided by law.
With regard to property, a person may be restricted in disposing of and managing their property, salary, or other regular monetary income. In such cases, the court determines the exact amount of income or the value of property above which the person may not dispose independently.
For all legal transactions that are not expressly specified in the court decision, a person deprived of legal capacity retains legal capacity and may undertake them independently.
