Right to Private and Family Life

V. Reform of Incapacity

 On 26 March 2015, Parliament adopted the amendments prepared by the Ministry of Justice, essentially reforming the regulation of incapacity in Lithuania.[1] These legal amendments fundamentally modified the law in relation to limited capacity and provided for two new possibilities – supported decision-making and advance directives (living wills); the amendments also provided for a regular review of the status of a person's incapacity. 

A strong push for reform came about as a result of the European Court of Human Rights ruling in the case of D.D. v Lithuania (2012), where the Court found violations of the European Convention on Human Rights (ECHR).[2] The Strasbourg court criticised Lithuania for the fact that the issue of the applicant's capacity was determined in her absence, that she was not invited to attend the court hearing to determine her legal guardian and that she was not informed of the hearing for her institutionalization. The Court noted that the involuntary placement of the applicant in the Kėdainiai Social Care Home amounted to a deprivation of her liberty (violation of Article 5 of ECHR), while the court proceedings regarding the change of the applicant's guardian were deemed unfair (violation of Article 6 of ECHR). Following the judgment of the ECtHR, D.D.'s legal capacity was restored by the national courts.[3] 

The amendments to the legislation established additional safeguards to ensure better protection of the rights of persons with mental illnesses. The amendments that will come into force in 2016 modify the regulation of limited capacity and provide for supported decision-making and advance directives; they also provide for a regular review of the status of a person's incapacity.  

The least progressive reforms were related to absolute incapacity. The UN Convention on the Rights of Persons with Disabilities provides that disabled people enjoy legal capacity on an equal basis with others in all aspects of life.[4] This means that incapacity cannot exist in principle and no one can have the absolute power to make decisions on behalf of a disabled person. However, the amendments adopted did not actually abolish absolute incapacity. 

Once persons are legally declared incapable due to a mental or some other disorder, they are placed under care, with the appointed guardian being able to make all decisions in relation to his or her ward. This model, whereby full decision-making powers are vested in another subject, is particularly common in post-Soviet countries, which for a long time saw human dignity and respect for human rights as foreign concepts. Nowadays it is universally recognized that this model degrades the dignity of persons with disabilities, discriminates against them in relation to other people and gives rise to numerous other human rights violations.[5] 

The amendments will abolish the ability – which still exists in Lithuania – to declare a person incapable in all aspects of life with a single court order, without any differentiation. However, Parliament left open the possibility of declaring a person incapable "in a particular field" – in other words, the transfer of full decision-making authority still exists, limited to "a particular field". For example, the Civil Code explicitly provides that persons may be prohibited from marrying if they have been declared legally incapable in this regard. 

These regulations are not in line with the provisions of the UN Convention on the Rights of Persons with Disabilities, which Lithuania ratified in 2010 and which obliges it to ensure that not a single person is ever fully deprived of his or her ability to make decisions. 

"I congratulate the Ministry of Justice and Parliament on preparing and adopting amendments to the law that abandon the exceptionally discriminatory concept of legal incapacity, which turns persons in a social nobodies not of their own will, but through the will of others. On the other hand, the United Nations Committee on the Rights of Persons with Disabilities has said that intellectual, mental or other disorders are no grounds for limiting a person's capacity in one way or the other – all are equal before the law and all people without exception have an inherent right to live in society with dignity. As such, it is lamentable that today we have not acted with courage and completely abolished incapacity at law. I believe that we will do so soon; I believe that one day human rights will cease to be just an abstract concept in Lithuania and will become the real foundation of our democratic society," said Jonas Ruškus, member of the UN Committee on the Rights of Persons with Disabilities. 

Findings and Recommendations 

  • The amendments to the law introducing additional legal safeguards to ensure better protection of the rights of persons with mental or intellectual disorders is a very positive development, namely, modifying the regulation of limited capacity, establishing supported decision-making and advance directives, as well as providing for a regular review of the status of the person's incapacity.
  • The least progressive reforms were related to absolute incapacity. It is recommended to completely abolish incapacity at law, since it is degrading to dignity of persons with disabilities, discriminates against them in relation to other persons and gives rise to numerous other human rights violations.                        

[1] Law Amending the Civil Code, 26 March 2015, No. XII-1566, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=1020888; Law Amending the Code of Civil Procedure, 26 March 2015, No. XII-1567, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=1020891&p_tr2=2

[2] 9 July 2012 judgment of the ECtHR in the case of D.D. v Lithuania, application No. 13469/06, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-109091#{"itemid":["001-109091"]}

[3] 29 May 2012 decision of the Kaunas District Court in civil proceedings No. 2-1294-451/2012

[4] UN Convention on the Rights of Persons with Disabilities, 13 December 2006, Article 12(2), http://www.un.org/disabilities/convention/conventionfull.shtml

[5] "J. Ruškus. Both children and staff break down in care institutions", delfi.lt, 10 February 2015, http://www.delfi.lt/news/ringas/lit/j-ruskus-globos-institucijose-paluzta-ir-aukletiniai-ir-darbuotojai.d?id=67115346#ixzz3XBrTxI4c