Custody, care and permanent care for the elderly

To date, the issue of arranging guardianship, custody, and permanent care for the elderly is quite relevant, as older people often require protection and assistance due to various life circumstances.

At the same time, the procedures for arranging permanent care, guardianship, and custody are entirely different from each other and represent distinct concepts.

Therefore, let us first take a closer look at the difference between the concepts of 'guardianship' and 'custody.'

Thus, the legislation defines that guardianship is established, in particular, over individuals who are recognized as incapacitated (Art. 58 Civil Code of Ukraine). While guardianship is established over individuals whose civil capacity is limited (Article 59 of the Civil Code of Ukraine).

Guardianship or custody is established at the place of residence of the individual in need or at the place of residence of the guardian or custodian.

Regarding the issue of guardianship.

Only adult citizens with full legal capacity may apply for the role of both guardian and trustee.

The following persons cannot be guardians: 

• are registered or treated in psychoneurological and drug treatment facilities;
• were previously guardians or custodians and the guardianship or custody was terminated through their fault;
• whose interests conflict with the interests of persons subject to guardianship or custody;
• convicted of a serious crime.

In order to obtain guardianship over an elderly person, it is necessary to obtain a court decision recognizing such a person as incapacitated. Only a court may declare a person incapacitated, and usually such a court decision immediately appoints a guardian (upon the relevant submission of the guardianship and trusteeship authority).

A person may be declared incapacitated by a court if, as a result of a chronic, persistent mental disorder, he or she is unable to realize the significance of his or her actions and/or to control them.

An application for recognition of an individual as incapacitated is filed with the court at the place of residence of the individual. An application for recognition of an individual as incapacitated may be filed by:

• members of her family, close relatives, regardless of their cohabitation;
• by the guardianship and custody authority;
• a psychiatric institution. 

In addition, it is worth remembering that the application must be accompanied by evidence to confirm the mental state: a health certificate and an extract from the medical record.

In turn, the guardianship and trusteeship authority may also appoint a guardian. Thus, the documents required for the appointment of a guardian include:

• notification of state, public organizations or a statement of a citizen (citizens);
• a copy of the birth certificate of the person in need of guardianship or other document confirming his/her age (copy of the passport);
• a court decision declaring the person incapacitated;
• an act of examination of the living conditions of a person in need of guardianship and an inventory of his/her property;
• health certificates of the person in need of guardianship (if he or she previously lived separately) and the future guardian (trustee);
• a certificate of residence of the future guardian and his/her application for assumption of guardianship responsibilities;
• an act of inspection of the future guardian's living conditions and a conclusion from the guardianship and trusteeship authorities at the guardian's place of residence on the possibility of performing guardianship duties;
• a certificate from a medical institution stating that the family of the future guardian (custodian) does not have any diseases that prevent the placement of a person in need of guardianship.

Regarding the issue of guardianship.

It should be noted that a guardian must meet the same requirements as a guardian.

As for the documents required for the guardianship and custody authorities to appoint a guardian, they should include, respectively:

• notification of state, public organizations or a statement of a citizen (citizens);
• a court decision to recognize a person with limited legal capacity;
• medical report on the state of health of the person in need of care;
• certificate of residence of the person in need of care;
• a statement of the future guardian on assumption of guardianship responsibilities.

In order to register guardianship over an elderly person, there must be a court decision recognizing such a person as having limited legal capacity.

A court may restrict the civil capacity of an individual if he or she suffers from a mental disorder that significantly affects his or her ability to realize the significance of his or her actions and/or to control them, if he or she abuses alcohol, drugs, toxic substances, gambling, etc. and thereby puts himself or herself or his or her family, as well as other persons whom he or she is legally obliged to support, in a difficult financial situation.

An application for restriction of civil capacity of an individual, including a minor, is filed with the court at the place of residence of the individual, and if the individual is undergoing treatment in a drug treatment or psychiatric facility, at the location of the facility.

As a rule, a court may also appoint a guardian for a person in a decision to recognize a person as partially incapacitated.

Registration of permanent care for an elderly person.

If an elderly person is capable and does not suffer from mental disorders but has functional impairments and cannot independently take care of themselves, in such a case, permanent care may be provided. It is appointed only at the request of such persons. The procedure is relatively simple compared to guardianship or custody, as there is no need to go to court.

Arranging permanent care for an elderly person has its legal nuances and can take several forms. Thus, individuals can provide care for the elderly either on a professional or non-professional basis.

Regarding non-professional care arrangements

Non-professional permanent care is provided by individuals without engaging in entrepreneurial activities, without undergoing training, and without adhering to state social service standards. It is provided for individuals (including elderly people) who are members of their family, live together with them, share a common household, and have mutual rights and obligations.

That is, non-professional care for the elderly can only be provided by their relatives.

In addition, a clear list of persons entitled to receive non-professional care services has been defined. This list includes, in particular:

• senior citizens with cognitive impairments;
• terminally ill patients who, due to impaired body functions, cannot move independently and take care of themselves.

For registration of care, among the necessary documents, it is provided:

• statement of consent to provide social care services on a non-professional basis (from a person who wishes to provide such care)
• statement of consent to receive social services (from a person in need of such care);
• income and property declarations (filled out on the basis of income certificates of each family member) (the declaration also includes information on the family composition of the individual who provides social services);
• a copy of the certificate of inspection by the medical and social expert commission (for persons with disabilities);
• conclusion of the medical commission of the medical institution regarding the need for care of elderly citizens due to cognitive impairment;
• conclusion of the medical commission of the medical institution regarding the need for care of terminally ill persons who, due to impaired body functions, cannot move independently and take care of themselves.

Note that the list of documents is determined taking into account the condition of the person who needs care.

In the case of registration of permanent care, you have the right to receive compensation for such care.

However, such compensation is assigned on the condition that your average monthly total income for one quarter does not exceed a certain established amount (currently it is UAH 2,589).

More details by link. 

Regarding registration of care on a professional basis

Care on a professional basis is carried out by a person without entrepreneurial activity who has undergone training and retraining in the basics of care and provides such services to persons who, due to impaired body functions, cannot move independently and take care of themselves.

Persons who can be provided with care services on a professional basis include, in particular:

• senior citizens;
• persons with disabilities;
• terminally ill, as well as patients requiring long-term treatment;

A person who needs the provision of social care services on a professional basis submits to an authorized body (usually they apply to the social protection authorities) a statement about the need to provide social care services on a professional basis for appropriate form.  

When submitting such an application, the following documents are provided:

• a copy of the passport of a citizen of Ukraine, for foreigners and stateless persons - certificate of application for protection in Ukraine/identity card requiring additional protection/refugee card/foreigner's passport document and temporary residence permit or permanent residence permit;
• a copy of the taxpayer's identification code.

Also added, in particular:

• a conclusion on the state of health of a person who, due to a violation of body functions, cannot move independently and take care of himself and needs the provision of social care services;
• a copy of the certificate of inspection by the medical and social expert commission (for persons with disabilities).

It is important that copies of submitted documents are certified by officials of the authorized body that accepted the application for the need to provide social services.

Persons providing social care services on a professional basis have the right to receive compensation.

Compensation is assigned and paid to natural persons who provide social care services on a professional basis and who are not in employment relationships, are not natural persons - entrepreneurs and do not conduct independent professional activities (scientific, literary, artistic, artistic, educational or teaching, as well as medical, legal practice, in particular advocacy, notary activities) and are not registered as unemployed.

More details by link.