GUARDIANSHIP IN CROATIA
A guardianship is in Croatia regulated by the Family Act, which defines it as a form of protection of underage persons without parental care, adults who are not capable to take care of themselves and those persons who, due to other reasons are not able to protect their rights and interests. Wards- people under guardianship can hence be minors and adults.
Guardianship over minors implies a replacement of parental care, whilst for adults it means personal protection by care, cure and training for life and work as well as the protection of ward’s proprietary rights and interests.
Competence for guardianship is by the Family Act given to Social Welfare Centre (which operates within the Croatian Ministry of Social Policy and Youth), guardian and special guardian. This paper will be presenting a legal framework of guardianship over adults.
In 2012 there was 0,37% of Croatian population deprived of legal capacity, whereof 88% of them was completely, and 12% partially deprived of their legal capacity.
GUARDIANSHIP AND PARENTAL CARE FOR ADULTS
Adults being placed under a guardianship are those persons who have been deprived of their legal capacity by the court.
A court deprives those persons of their legal capacity in a non- contentious proceeding, when they, due to mental difficulties or other reason aren’t capable of taking care of their rights and interests, or if they endanger rights and interests of others. Before delivering a decision, a court obtains an expert opinion of a doctor on health condition of a person subject to procedure of deprivation of legal capacity.
During the procedure, there is a special guardian appointed by the Social Welfare Centre for a person whose deprivation of legal capacity is sought for.
After depriving of legal capacity, the Social Welfare Centre places those persons under guardianship and appoints a guardian for them within 30 days from the validity of court decision. In case of partial deprivation court defines measures and actions that a person cannot take independently, while all the other non- forbidden actions can be taken by a person herself.
It is provided that a doctor submits an opinion on ward’s health condition regarding the reason of deprivation of legal capacity, every three years and upon request of the Social Welfare Centre.
If a person deprived of her legal capacity has parents, who accept and are capable of caring of their full-age child, the Social Welfare Centre decides on parental care after age of majority.
Termination of guardianship is connected to the validity of court decision on return of legal capacity. It should be noted, that number of such cases is negligible though.
GUARDIANSHIP FOR SPECIAL CASES
The law provides the institution of guardianship for special cases for purpose of protection of particular personal and proprietary rights and interests. With this regard the Social Welfare Centre appoints, for instance, a special guardian to a child in different status disputes or cases of contrary interests of child and parents etc.
When it comes to adults, a special guardian will be appointed (also by the Social Welfare Centre):
– to a person, for whom a request for deprivation of legal capacity is filed
– to a person whose residence is unknown for at least 3 months or isn’t available and has no attorney
– to a ward when there is conflict of interests between him and his guardian or a guardian’ s close relative or spouse in proprietary matters or disputes, i.e. upon closing certain legal transactions
– to wards in a dispute between them when they have the same guardian
– in other cases when it is necessary for the protection of person’s rights and interests.
A special guardian is often appointed for purpose of procedures before courts or other bodies. When a party in such procedure is a person whose residence is unknown for at least 3 months or isn’t available and has no attorney, a Social Welfare Centre will appoint a special guardian to that person but only upon notification of the court or administrative body conducting proceeding on this person’s rights and interests.
Under certain conditions the body conducting proceeding can appoint a special guardian by itself. On such occasion it has a duty to notify the competent Social Welfare Centre, which has all the powers over the guardian appointed in this manner, as it was the guardian appointed by the Centre.
Duties and powers of a special guardian are determined with the decision of his appointment and these duties and powers end after the decision on termination of guardianship becomes final.
PERSON OF A GUARDIAN
The Family Act distinguishes a direct guardianship- performed by the employee of the Social Welfare Centre and indirect one- performed by the natural person who becomes a guardian upon appointment by the Centre.
Person with characteristics and capability of guardianship performance can be appointed as a guardian provided she accepts it. Furthermore there are no obstacles for a person to be a guardian over more wards if it isn’t contrary to their interests.
As obstacles for pursuing guardianship, the Family Act alleges a person:
– deprived of parental care
– deprived of a legal capacity
– whose interests are contrary to interests of a ward
– from whom it cannot be expected to be a proper guardian, due to her personal conduct and relationship with a ward
– with whom a ward closed a life-long support contract
– with whose spouse a ward closed a life-long support contract
As to the compensation, it is rather symbolic and for persons with a guardian duty it is currently prescribed in monthly amount of 100,00 kuna. When attorneys at law are appointed as special guardians, they have a right to compensation in amount of 50 % of the award according to the scale of legal fees.
Supervision over relationship between guardian and ward is carried out by the Social Welfare Centre. It is a legal commitment of a guardian to file a report on his work and status of ward’s property every 6 months and upon request of the Centre. If a guardian has a duty to support the ward, such report needs to be filed once a year and upon request of the Centre. Besides, there is a duty of an employee at the Centre to visit a ward twice a year but also when it is asked by the guardian.
It is explicitly provided that a guardian should take a proper care of a ward, his rights and welfare and to manage his property. The role of a guardian is to represent a ward, but also to independently manage his property in regular matters, unless otherwise provided by the decision of the Centre.
However, for taking important measures regarding ward’s personal status or health, a guardian is submitted to additional control of the Centre, which has to issue a consent in those cases. Without consent of the Centre, a guardian cannot dispose of or encumber ward’s real estate property or dispose of other valuable property of a ward.
Furthermore, a guardian is liable for damages incurred by his fault within performance of his duties. On this occasion, the Centre defines an amount of damage and asks a guardian to compensate it in certain period. At the same time, the Centre files a request at court for security of ward’s claim on guardian’s property. If a guardian doesn’t compensate the damage within the set period, the Centre will file a lawsuit for compensation of damages against him.
A consequence of legal arrangements conducted by a guardian on behalf of a ward but without necessary consent or with himself or his spouse is a voidness of such legal arrangements. This of course along with compensation of eventually incurred damages.
There is also a criminal liability of a guardian for injuries of his legal duties. The Criminal Act constitutes an abuse of confidence as criminal offence, which encompasses abuse of legal or contractual duties in representing proprietary interests of another person and consequent cause of damage to this person. If this offence is committed by a guardian, it constitutes a qualified form of an offence with the prison punishment from 6 months to 5 years.
Croatian legal system doesn’t recognize an institution of anticipated order i.e. a health care proxy equivalent to German term „Vorsorgevollmacht“. However, this institution is introduced with the draft of new Family Act, which should entry into force in 2014. According to the draft, a person could appoint another person as her guardian in case of being deprived of her legal capacity. Such statement would be valid if drafted in a form of notarised deed. According to current proposal the Social Welfare Centre would formally appoint such proxy after ascertainment whether he meets all the legal requirements for a guardian.