People with mental disabilities are deprived of the opportunity to defend their rights. The law supposed to help is the one that even takes this capability. Once declared unable, these people even loose the chance to prove the contrary. It only remains to suffer in silence, while the guardians make decisions for them.

Practice of many countries shows that guardianship may be liquidated. Instead, was set up  a support service. In this case, people with mental disabilities have the right to speak, for decisions and request to have their rights respected. Moldova, for now, is far from establishing this practice.

Tutors decide for guardianship

Currently, people with mental disabilities are deprived of their legal capacity, by declaration of the inability by the court and guardian setting. Specifically, the doctor diagnoses, noting whether the person should be placed under guardianship or not. Further, the procedure for declaration of inability is done by judgment, based on forensic expertise. “The guardian is the one who makes decisions, including legal decisions, on behalf of guardianship. Person declared incapable bear all the consequences and all the effects of the decisions made by the guardian”, observes Alina Grigoraş, national consultant at the Office of the UN High Commissioner for Human Rights (OHCHR).

Typically, the guardian is named a family member, who can take advantage of the guardianship inability. Alina Grigoraş notes that, under the Convention on the Rights of Persons with Disabilities (CRPD), “regardless of the type of disability, individuals should make their own decisions, thus preserving their autonomy. Guardianship does not correspond to the Convention provisions. Therefore, other forms of support should be established to support these people in making decisions, to not make decisions for them, but to provide them support in this regard”, pinpoints OHCHR consultant.

Vice of legislation regarding guardianship

Thus, according to art. 12 of the UN Convention on the Rights of Persons with Disabilities, which was ratified by Moldova on July 9, 2010, people with disabilities have the right to be recognized everywhere as a person with rights before the law and beneficiate from the same legal capacity as other persons in all aspects of life. On the other hand, national provisions, governing the legal capacity, are inconsistent with Art.12 of the Convention. In Moldova, people with intellectual disabilities do not have the opportunity to choose their guardian, to sue and, respectively, to require their rights to be respected.

Lilia Popovici is the mother of a child with intellectual disabilities. She is his guardian, so she is the person who makes decisions for her son. “He can not make decisions, because he does not have legal capacity. Just the guardian, I, can sue”, says the woman. So, according to art. 24, par.2 of the Civil Code of the Republic of Moldova, “legal documents on behalf of individuals declared incapable are done by the guardian”. Guardian must be “a person of good faith. In our country, however, are not studied all the options on who could be the guardian”, thinks Lilia. “When the guardian is not a person of good faith and is not interested that the guardianship, the person with disabilities, rights to be respected, a vice is created”, she adds.

The person can not prove that she is healthy

One way of solving the problem are non-governmental organizations specializing in the rights of people with disabilities. However, many cases remain unknown for NGOs. In such circumstances, the situation for subjects remains unchanged. Legal incapacity of persons with mental disabilities complicates their lives, especially when they are put in a position to fight for their rights. About one of these cases ZdG wrote previously (Nr. 405, 10^th of January, 2013). Elena Voronina, 68, is declared mentally unfit. Civil Code does not allow to recover this ability. Only the guardian can do it.

Officially, she does not yet have a guardian, but fears that her daughter, who intends to take her apartment, could become her guardian. Alexandru Cebanaş, Elena Voronina’s lawyer, claims that the woman was examined by a psychologist. “I did the EEG. The results are in favor of my client, but the law provides that a person must pass specifically the psychiatric expertise”, denotes lawyer. He asked for an ambulatory expertise of the person, but doctors at the psychiatric hospital refused, asking for her forced hospitalization. “Our file is a civil one, not a criminal one, and forced internment is done under criminal proceedings (when the person is dangerous for society). We are in a stupid situation when the person can not prove that she is healthy”, says Alexandru Cebanaş.

Moldovan legislation is imperfect

One solution would be doing a psychiatric examination abroad. “That would be an impressive evidence in our favor”, consider lawyer Elena Voronina. On the other hand, in this case, another problem arise. Moldovan legislation “is slightly imperfect in this chapter. In court, are only accepted psychiatric examinations done in hospitals across the country”, explains Alexandru Cebanaş. However, in this case, the lawyer claims to find ways of success for his client. “After ECHR practice, we can present any evidence in favor of our client. We can quote and call any expert, not only from country”, he pinpoints.

A solution for more people with disabilities being in such situations, and not only, is the abolition of guardianship. “By the fact of establishment of the guardianship, the rights of the people declared disable are exercised by the third person. Because this system is not functioning properly, often the guardians of these people are abusing this right, the right to decide for them”, says Vitalie Meșter, director of the Center for Legal Assistance for Persons with Disabilities (CLAPD). Instead guardianship, could be established the support service for these people. Currently, tutors make decision without consulting the person directly concerned, but another person decides for her. But the supporter would present the desire of the person”, explains Vitalie Meșter.

Supporter – an alternative to replace the guardian

So, The Legal Aid Center for Persons with Disabilities comes up with an idea of a supporter instead of a tutor. “The person will have the chance to choose the support person,  regarding everyday problems. In situations where decisions could have an impact on persons life, such as buying a home or money transactions, decisions on obtaining pensions and so on., will be designated an official supporter or, at least, the person who participated as a supporter will be checked if has acted in good faith”, announces Ion Cibotărică, lawyer CLAPD. Another solution would be personal assistance. This ” includes people with mental disabilities. In this case, this service could be applied to replace tutors”, consider the lawyer.

In most countries in Europe, people with mental disabilities beneficiate of guardianship partially, and other countries have chosen the model of support in making decision. “For several years now, in Sweden the guardianship is not applied. The person himself chooses his personal Ombudsman”, reports Arcadie Astrahan, consultant for Human Rights, Health and Disability, UNDP. He also, emphasizes that the state should be able to sue and protect.  “Usually, if the person commits an unlawfulness, someone is directing. In this case, it would be correct to sue the one who takes advantage of the persons vulnerability, but not to deprive the vulnerable person from their right”, said Arcadie Astrahan.

This article is part of the project “The rights of persons with mental disabilities for legal capacity. A new level of protection “, implemented by the Center for Legal Assistance for Persons with Disabilities, with the financial support of the Foundation Soros-Moldova/ Equality and Civic Engagement Program. The opinions expressed are those of the author and do not necessarily reflect the position of the Foundation.

Olga BULAT