Likwidacja konstrukcji ubezwłasnowolnienia w Gruzji po wyroku Sądu Konstytucyjnego z 8 października 2014 r.

• Authors: Szwed Marcin

Title variants

EN

Abolition of the Institution of Guardianship in Georgia after the Constitutional Court’s Judgment of 8th October 2014

• Languages of publication: PL

Abstracts

EN

The institution of guardianship is being heavily criticized by the human rights scholars and activists, as well as certain international bodies such as the UN Committee on the Rights of Persons with Disabilities. It is argued that because of its rigidity it leads to a disproportionate interference with the autonomy of persons with mental disabilities. In recent years, many countries undertook thorough legislative reforms with the aim to replace archaic system of guardianship with more flexible and individualized support mechanisms. One of such countries is Georgia. The legislative changes in this country were stimulated by the Constitutional Court which in its judgment of 8th October 2014 held that the inflexible system of guardianship regulated in the Civil Code and the Code of Civil Procedure violated the constitutional guarantees of personal autonomy, equality and access to court. The Court obliged the legislature to introduce a completely new system of legal protection of persons with mental disabilities based on three principles: flexibility, proportionality and maintenance of legal capacity of individuals to a maximum possible extent. The reform entered into force in June 2015. The new laws replaced the institution of guardianship with flexible and individualized system of support. Unlike in guardianship, the role of supporter is not to take actions on behalf of supported person, but just to provide him/her assistance in certain spheres of life. Both those spheres as well as the scope of the assistance have to be specified by the courts, taking into account individual needs of persons under support. The complete substitution of the person’s will with the will of supporter (substitute decision making) is permissible only in exceptional cases. Although the new provisions protect the autonomy of persons with mental disabilities to a much greater extent, their practical application by the courts is still unsatisfactory. In its report published in October 2016, the Georgian Ombudsman showed that the courts apply new regulations too superficially and do not analyse the individual situation of a given person with the required scrupulosity.

• Publisher: Kancelaria Prezesa Rady Ministrów
• Journal: Przegląd Legislacyjny
• Year: 2017
• Issue: PL 1(99)
• Pages: 65-83

Contributors

author

Szwed Marcin

• Uniwersytet Warszawski - University of Warsaw