Guardianship, custodianship and recognition as a recipient of support: who acts lawfully when a patient can no longer make decisions
The hardest discovery for a family is that love and kinship are not a legal right: a spouse cannot withdraw money from the patient's account, a child cannot sign a contract on the patient's behalf, and children whose parent is in intensive care formally have no representative. This page explains what can be done right away, what only through the court, and what duties come with the role a family member takes on. Every step is handled by an Advocat.Ge lawyer who protects the patient and the family alike.
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Medical and property matters kept apartWhat a relative can do today and what needs a court
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A lawyer from the claim to registrationThe family is not alone at the examination or the hearing
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The diagnosis does not leave the courtMedical reports go only into the case file, not into our database
What a family member can do right now and what only through the court
The law treats medical and property decisions differently. Without this table, families often either do what they have no right to do or fail to do what they are entitled to.
| Action | A relative without a power of attorney | What is needed |
|---|---|---|
| Consent to treatment or surgery | Can, when the patient cannot express their own wishes | The clinic's form; a document proving the family relationship |
| Obtaining medical documents from the clinic | To a limited extent, under the clinic's rules | The patient's consent or legal representation |
| Paying from the patient's account | Cannot | A notarised power of attorney or a court decision on support |
| Selling or mortgaging a flat for treatment | Cannot, even under joint ownership | A power of attorney with exact powers, or supporter status plus the authority's consent |
| Representing a child at school, a clinic or a bank | The other parent can; a grandmother or uncle cannot | Appointment of a guardian or custodian by the authority |
| Writing a will on the patient's behalf | Never | Impossible; only the person themselves can make a will |
If the patient regains consciousness, even temporarily, a power of attorney is drawn up in the first lucid hour through a notary's off-site visit: that one sheet of paper makes the whole court route unnecessary.
The court route for an adult patient: recognition as a recipient of support
Since 2015 the law no longer declares a person legally incapable: the court establishes in which areas they need support and appoints a supporter. It is a more humane and more precise tool, but it requires more documents.
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A claim with the doctors' reports
The lawyer drafts the claim listing the specific areas (property, finances, medical decisions) and attaches the treating doctor's reports, the diagnosis and the treatment history. An incomplete claim is returned and weeks are lost.
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The expert examination
The court orders a forensic psychiatric or neurological examination. If the patient cannot be moved, we ask for the examination to be held at the clinic. The conclusion establishes what the patient can do alone and where they need support.
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The hearing and the decision
The court hears the candidate, checks the family's position and appoints a supporter with precisely defined powers. The lawyer represents the family at the hearing and asks for an expedited hearing because of the patient's condition.
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Registration and the first steps
The decision takes effect and is registered with the guardianship and custodianship authority. The supporter uses this document at the bank and the clinic. The lawyer leaves a written list of duties and reporting requirements.
Details of the court procedure, the list of documents and the deadlines are on a separate page: Recognition as a recipient of support in court.
Children whose parent is seriously ill: a guardian up to age seven, a custodian up to eighteen
As long as the other parent is alive and holds parental rights, they are the child's legal representative and nothing more is needed. In every other case the child needs a formal representative.
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Who appoints, and on what basis
The guardianship and custodianship authority, in the child's best interests. The person named in the parent's will is the main point of reference, but the authority vets the candidate: health, criminal record, housing, income and relationship with the child.
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While the parent is alive
A seriously ill parent can apply to the authority themselves and ask for a guardian to be appointed for the child during their lifetime, or record their wishes in a will. Both routes protect the child from the uncertainty that begins on the day the parent dies.
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What a guardian can and cannot do
Day-to-day representation at school, a clinic or a bank; managing the child's property only for the child's benefit; selling or mortgaging a flat only with the authority's consent. A guardian cannot take the child's property for themselves and reports to the authority.
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An inheritance in the child's name
If the parent has died, the guardian files the inheritance application on the child's behalf within six months and registers the inheritance in the child's name. The lawyer leaves the family this deadline in writing, because it is the easiest thing to miss in the months of mourning.
Frequently asked questions about guardianship and support
The patient is in a coma. Can their spouse pay the clinic from the patient's account?
Not without a power of attorney, and this is the fact families find most painful to discover. Marriage does not give a spouse the right to operate the patient's personal account: a bank pays out money only to the account holder or their attorney, and selling or mortgaging a jointly owned flat also needs both spouses' signatures. Medical decisions are a different matter: the law on patients' rights allows a relative or legal representative to consent to treatment when the patient cannot, and clinics rely on this every day. For property matters there are two routes: if the patient regains consciousness, a power of attorney is drawn up on the first lucid day; if not, a family member applies to the court for recognition of the patient as a recipient of support. In the meantime the family pays the clinic's bills from its own funds and keeps the receipts, so that it can be reimbursed from the patient's assets later.
How long does the court take, and can it be speeded up?
Recognition as a recipient of support has three stages: a claim with the doctors' reports, a forensic psychiatric or neurological examination that establishes in which areas the patient needs support, and a hearing at which the court appoints a supporter and sets the limits of their authority. Altogether this takes from a few weeks to a few months depending on the case, and the queue for the examination takes the most time. It can be speeded up through what depends on us: a claim with complete documents so that the court does not return it, doctors' reports obtained in advance and correctly worded, holding the examination at the clinic if the patient cannot be moved, and asking the court to hear the case without delay because of the patient's condition. What we cannot speed up: the expert's conclusion and the court's own assessment. If a decision is needed within hours, the court route will not work and the lawyer looks for other tools.
Who can and cannot be a supporter or guardian?
A supporter can be any adult with full legal capacity who has a relationship of trust with the patient: a spouse, child, parent, brother or sister, sometimes a close friend. The court takes into account the patient's wishes if they can still express them, and also hears the position of other family members; a conflict of interest, for example when the candidate is the patient's creditor or has their own claim to the property, is an obstacle to appointment. As guardian or custodian of children the authority prefers to appoint a close relative and gives particular weight to the person named in the parent's will, but it vets the candidate: criminal record, health, housing, income and relationship with the child. A person whose parental rights have been removed, or who was earlier dismissed as a guardian for breach of duty, cannot become a guardian. The lawyer talks to the candidate in advance so that a refusal at the hearing does not come as a surprise.
What duties does a supporter have, and who supervises them?
A supporter does not act instead of the patient but alongside them: they help the patient make decisions in the areas the court has defined, and act in the patient's name only when a decision cannot be reached that way. The duties are specific: taking the patient's interests and wishes into account, disposing of property only for the patient's benefit and with permission where the law requires it, keeping a record of expenses and reporting to the guardianship and custodianship authority, which supervises the supporter's work and seeks their replacement if they breach their duties. A supporter has no right to transfer the patient's property into their own name, take a loan from it or write a will on the patient's behalf. The lawyer leaves the supporter a written list of duties and helps prepare the first report, so that a role the family took on in hard days does not turn into a problem later.
What makes the court route unnecessary or follows it
- Wills and inheritance While the patient can still make decisions: a will and a power of attorney in one visit, naming a guardian for the children.
- Recognition as a recipient of support in court The claim documents, the examination, the hearing and registration in detail.
- Transferring a critically ill patient When the family has to decide on a change of clinic and the patient is in intensive care.
A family needs a lawful voice, not just hope
Describe the patient's condition and what you need to do on their behalf. A lawyer will call you free of charge and tell you what you can do as soon as tomorrow and for what the court route has to start today.