Military service in and of itself is not grounds for automatically denying a person’s appointment as guardian of a legally incapacitated relative. This was discussed during a press conference attended by attorney Yaroslav Khlivny of the Roman Satsyk Law Firm.
“Guardianship is not merely a formal legal procedure. It serves, first and foremost, to protect the rights and interests of those who, due to their health condition, are no longer able to care for themselves,” the attorney noted.
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When Parents Are Left Without Care
The lawyers cited an example of a case the firm had handled. Two brothers were serving in the military, while their father, due to a severe mental illness, was paralyzed and required constant care. For a long time, his wife took care of him, but after the amputation of her lower limb, she herself began to need assistance.
“The family effectively found itself in a situation where two seriously ill people were left unable to meet even their most basic needs,” explained Yaroslav Khlivnyi.
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Can a Servicemember Become a Guardian?
The mere fact of serving in the military does not automatically preclude appointment as a guardian. At the same time, the court examines whether there are other individuals who can realisticallyprovide guardianship.
“No provision in current legislation contains a prohibition or any restrictions regarding the appointment of a person on active military duty as a guardian,” emphasized Khlivnyi.
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However, the appointment is not automatic.
“The procedure for appointing a military service member as a guardian in no way guarantees automatic approval,” the attorney added.
Why a Diagnosis Is Not Enough
Only a court can declare an adult legally incompetent. A mental health diagnosis or disability does not itself mean this. The court must determine whether the person is capable of understanding the significance of their actions and controlling them.
“The presence of a mental illness does not in itself mean that a person has lost their legal capacity,” explained Yaroslav Khlivnyi.
To determine this, medical records, family circumstances, and the findings of a forensic psychiatric evaluation are examined.
“The key evidence in such cases is precisely the conclusion of the forensic psychiatric evaluation,” the attorney noted.
Who Decides Who Should Be Appointed as Guardian
The guardianship and custody authority participates in the procedure. It reviews the candidate for guardian, checks for the presence of other relatives, and assesses the individual’s ability to provide care.
“The court cannot arbitrarily select a guardian or appoint a person solely on the basis of their own desire or a request from relatives,” explained Khlivnyi.
The court evaluates the guardianship authority’s submission along with other case materials.
Once appointed, the guardian becomes the legal representative of the incapacitated person. The guardian may represent the person’s interests before government agencies, medical institutions, and social services, and is obligated to ensure proper care.
“One of the guardian’s most important powers is to legally represent the ward’s interests,” the attorney noted.
Is it necessary to first be discharged from military service?
Prior discharge from military service is not a mandatory requirement for applying to be appointed as a guardian.
“The law does not require mandatory discharge from the Armed Forces of Ukraine before submitting an application to be appointed as a guardian,” emphasized Yaroslav Khlivnyi.
At the same time, the establishment of guardianship does not mean automatic discharge from service. These are separate legal procedures that require individual assessment.
Why It’s Important Not to Delay
As long as a person remains legally competent, even their closest relatives do not automatically have the right to fully represent their interests. This can complicate matters related to medical treatment, social benefits, and interactions with government agencies.
“Delaying the process of filing a lawsuit can lead to a number of serious practical consequences that may affect the life of the individual and their loved ones,” the attorney emphasized.
The Roman Satsyk Law Firm handles such cases, where Yaroslav Khlivnyi specializes in military law. As the case discussed during the press conference shows, guardianship in such circumstances is, first and foremost, a way to establish a legal mechanism to protect a seriously ill person, ensure their representation, and guarantee their access to necessary care.
