Placement under guardianship

Placement under guardianship and involuntary placement in a psychiatric institution

Recently, cases of placement under guardianship or involuntary placement in a psychiatric institution have become quite frequent. From my experience so far, I observe three types of motives or grounds for instituting such proceedings.

In the first type, relatives are motivated to conduct such proceedings because of some conflict, especially in the presence of property disputes. When a relative of the person wishes to harm him or her to stop a case between them, he or she files a lawsuit before the district court to place the person under guardianship. According to Art. 229, para 1, item 3 of the Civil Procedure Code, the court suspends the proceedings when it is necessary to establish guardianship or trusteeship of one of the parties - this means that in proceedings for placement under guardianship, the party requesting placement under guardianship of the person party also has a civil dispute with the same person, asks the court to stay the civil case. Sometimes the claim before the district court for placement under guardianship is preceded by the initiation of a criminal case of a private nature before the district court, which is for forced placement in a psychiatric institution. Unfortunately, such unscrupulous practices between relatives are a fairly common practice in all kinds of conflicts and disputes.

In the second type of motive, the person whose placement under guardianship or involuntary placement in a psychiatric institution is sought suffers from mental problems that threaten themselves or others, as well as their interests and the interests of other participants in the civil turnover. Drug addiction and alcoholism can also be a prerequisite for placing a person under guardianship, but only if they have caused the person mental illness. In fact, drug addiction or alcoholism is one of the most common reasons for requesting that a person be placed under guardianship or placed in a psychiatric institution for involuntary treatment. Often people suffering from drug addiction or alcoholism become aggressive towards others or towards themselves and due to their condition can commit a crime.

In the third type of case, placement under guardianship or involuntary placement in a psychiatric institution is requested by the prosecutor. The reasons can be many, as it often happens in practice that the person has given a signal to the police, writing in his signal that he was mentally affected, or mentioned psychics, mediums or aliens, or a relative to complained to the police that the person had thoughts of suicide or self-mutilation with others. In this case, after the investigating officer has reported to the supervising prosecutor, the prosecutor may, at his discretion, request either the district court to forcibly place the person in a psychiatric institution or to place him under guardianship.

What is the difference and what do incapacitation and involuntary placement in a psychiatric institution have in common?

According to Art. 5, para. 1 of the Law on Persons and the Family, minors and adults who due to dementia or mental illness cannot take care of their jobs, are placed under full incapacity and become incapacitated. In order to be placed under guardianship, a person suffering from dementia or mental illness must not be able to take care of his affairs, ie he must not be able to accept the provisions of the legal norm, respectively he must not be able to control his actions. Incapacitation does not occur when the illness is short-lived (eg drug abuse or drunkenness). The main thing here is that the person not only suffers from mental illness, but also can not take care of their affairs and control their actions. In case a person is placed under guardianship, within 30 days from the receipt of a copy of the court decision for placement under guardianship, the guardianship and trusteeship authority is obliged to appoint a guardian and deputy guardian, the body being the mayor of the municipality. or an official designated by him, and the trustee and deputy trustee are most often appointed relatives of the person who are considered to be best placed to take care of his interests and have given written consent. The plaintiff in the case of placement under guardianship is not awarded costs. In the event that the claim for interdiction is rejected, the plaintiff owes costs to the defendant - the person whose interdiction was requested. The request for annulment of the decision for placement under guardianship or change of the type of guardianship may be made by the same persons who may request the placement under guardianship, as well as by the guardianship authority, the guardian or the barred person himself.

According to Art. 155 of the Health Act, Compulsory accommodation and treatment are subject to the mentally ill and people with mental retardation, who due to their illness may commit a crime that poses a danger to their loved ones, others, society or seriously endangers their health. While in the case of placement under guardianship the preconditions are that the person has a mental illness or dementia and cannot take care of his / her affairs, here the person must be dangerous for himself / herself, for his / her relatives, for others or for the society. It is not enough for a person to suffer from a mental illness to be compulsorily accommodated for treatment - the person may suffer from an illness, but not be dangerous to anyone, and in this case will not meet the conditions of the Health Act. A person is considered dangerous to himself when there is a risk of suicide or self-harm, is not able to meet his vital needs without supervision and assistance and can cause significant property damage. And a person who endangers or damages the person, the rights of the citizens, the property, the legal order established by the Constitution in the Republic of Bulgaria or other interests protected by the law is considered dangerous for the others. Compulsory treatment is carried out in inpatient psychiatric care facilities and mental health centers, in psychiatric wards or clinics of general hospitals and in medical facilities for specialized psychiatric outpatient care. No costs are due for this production. The obligatory treatment is terminated with the expiration of the term for which it has been ruled, or with a decision of the district court at the location of the medical establishment. Every three months, on the basis of the forensic psychiatric expertise submitted by the medical institution, the district court at the location of the institution shall issue an official decision with a decision to terminate the mandatory accommodation and treatment or to continue the mandatory accommodation and treatment.

Similarities between the two proceedings

The proceedings for placement under guardianship and involuntary placement in a psychiatric institution, although ending with a different result, have quite similar features, such as: in both proceedings a prosecutor must be present, and in both proceedings the court must hear the person and obtain personal and immediate impressions of him, in both proceedings a psychiatric examination was appointed. There is no way for a person to be placed under guardianship or subjected to compulsory treatment in a psychiatric institution without the same being heard in court and the court immediately gaining an idea of ​​the condition of that person. In case the court finds that the person does not suffer from any mental problems, he may terminate the case and not appoint a psychiatric examination, but in practice this almost never happens. Regardless of the judge's impressions of the person, judges always insure themselves by appointing a forensic psychiatric or complex forensic psychiatric-psychological expertise. Psychiatrists and psychologists have the task of providing a conclusion on whether a person needs placement under guardianship or whether involuntary placement in a psychiatric institution is necessary. The court almost always takes into account the expert opinion and motivates its decision largely on the basis of the expertise.

Although in many cases the person does suffer from an illness and these measures are necessary, it often happens, as I mentioned above, that this type of case is brought because of unscrupulous relatives for various reasons. I dare say that I quickly gained solid experience in this type of case, in the preparation of persons who will appear for expertise, as well as in appealing expertise and decisions for placement under guardianship and involuntary placement in a psychiatric institution, which is why I am always for consultation.

adv. Bogomil Yordanov


The above article is not a mandatory opinion, consultation or advice, but rather a sharing of impressions from personal practice on the topic. For individual cases, it is best to make an appointment with a lawyer.