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Last update: 05-07-2022

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The Vulnerable in Croatia

1

Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

Yes, the Republic of Croatia is party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The Convention entered into force on 1 January 2010.

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The applicable law is determined by the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children as lex fori (law of the jurisdiction in which a legal action is brought) with an exception set out by Art. 15.2 and 15.3 of the Convention:

(2) However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection.

(3) If the child’s habitual residence changes to another Contracting State, the law of that other State governs, from the time of the change, the conditions of application of the measures taken in the State of the former habitual residence.

In cases when the above-mentioned Hague convention does not apply, the national legislation (Act concerning the resolution of conflict-of-laws with the provisions of other countries in certain matters) applies.

Applicable provisions of the national act for questions of custody and relations between parents and children:

(Art 15)

The law governing guardianship and its termination, as well as the relations between the guardian and the person who is placed under guardianship, is the law of the state of which the person under guardianship is a citizen.

Interim measures concerning aliens or stateless persons who are in the Republic of Croatia are determined according to the law of the Republic of Croatia and will remain operative as long as the competent state does not take a decision and does not take the necessary measures.

The provision of paragraph 2 of this Article applies also in respect of the protection of the property of an absent alien or a stateless person which is situated on the territory of the Republic of Croatia.

(Art 40)

The law governing the relations between parents and children is the law of the state of which they are citizens.

If the parents and children are citizens of different states, the law of the state where they all are domiciled is the applicable law.

If the parents and children are citizens of different states, and they are not domiciled in the same state, the law of the Republic of Croatia is the applicable law if the child or any parent is a citizen of the Republic of Croatia.

The law governing the relations between parents and children that have not been provided for in paragraphs 1-3 of this Article is the law of the state of which the child is a Citizen.

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

Concerning international jurisdiction, if the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation), the application of this Regulation will prevail over both the Hague Convention and national conflict-of-law legislation.

The competent authority is determined according to the minor’s habitual residence.

If the minor has its habitual residence outside the European Union but in a State party to the Hague Convention, the international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person.

If the minor has his/her last habitual residence outside of the EU, in a state which is not party to the above-mentioned Hague convention, provisions of the national conflict-of-law legislation will be applicable for determining international jurisdiction.

Art. 46

The court of the Republic of Croatia has jurisdiction if the defendant is domiciled or has its seat in the Republic of Croatia.

If the defendant is domiciled neither in the Republic of Croatia nor in any other state, the court of the Republic of Croatia has jurisdiction also when the defendant is resident in the Republic of Croatia.

If the litigants are citizens of the Republic of Croatia, the court of the Republic of Croatia has jurisdiction also when the defendant is resident in the Republic of Croatia.

If there is more than one ”material” defendant, the court of the Republic of Croatia has jurisdiction also when one of the defendants is domiciled or has its seat in the Republic of Croatia.

When a dispute is resolved in non-contentious proceedings, the court of the Republic of Croatia has jurisdiction if the person against whom the claim is brought is domiciled or has its seat in the Republic of Croatia, and when only one person takes part in the proceedings- if that person is domiciled or has its seat in the Republic of Croatia, unless it is otherwise provided by this Act.

Art 66

The court of the Republic of Croatia also has jurisdiction in proceedings concerning the care, upbringing and education of children of whom parents have the charge, when the defendant is not domiciled in the Republic of Croatia, if both spouses are citizens of the Republic of Croatia.

If the defendant and the child are citizens of the Republic of Croatia and if both are domiciled in the Republic of Croatia, the court of the Republic of Croatia has exclusive jurisdiction.

The provisions of paragraphs 1 and 2 of this Article as well as the provisions of Article 46 of this Act are also accordingly applicable to the determination of the competence of other organs of the Republic of Croatia, when they decide on the care, upbringing and education of children of whom the parents have the charge.

Art 69

As to decisions about the deprivation and restoration of parental power, the extension of parental power, the appointment of a parent as trustee in respect of the property of children, the declaration that a child is born of a marriage as well as decisions about other matters that relate to the personal status and relations between parents and children, the court of the Republic of Croatia has jurisdiction also when the conditions of Article 46 paragraph 4 of this Act do not exist, if the applicant and the person against whom the suit is instituted are citizens of the Republic of Croatia or when only one person participates in the proceedings if that person is a citizen of the Republic of Croatia.

Art 75

An organ of the Republic of Croatia has exclusive jurisdiction in cases of guardianship over citizens of the Republic of Croatia irrespective of where they are domiciled, unless otherwise provided by this Act.

Art 76

The organ of the Republic of Croatia shall not take decisions and provide measures in cases concerning the guardianship of citizens of the Republic of Croatia who are domiciled abroad if they establish that the organ which has jurisdiction according to the law of foreign state has taken a decision and provided measures by which the protection of the person, rights and interests of the citizens of the Republic of Croatia have been secured.

Art 77

The organ of the Republic of Croatia shall take necessary provisional measures for the protection of the person, rights and interest of a foreigner who is or has property in the Republic of Croatia, about which they shall inform the organ of the state of which that person is a citizen.

The organ of the Republic of Croatia shall take decisions and measures in cases concerning the guardianship if a foreigner who is domiciled in the Republic of Croatia if the protection of his/her person, rights and interests has not been secured by the organ of the state of which he/she is Citizen.

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

Concerning international jurisdiction, if the minor has its habitual residence in a Member State of the EU bound by Council Regulation (EC) No 2201/2003 (Brussels IIa Regulation) the application of this Regulation will prevail over both the Hague Convention and national conflict-of-law legislation.

The competent authority is determined according to the minor’s habitual residence.

If the minor has his/her habitual residence outside the European Union but in a State party to the Hague Convention, international jurisdiction will be attributed to the judicial and administrative authorities of the Contracting State of the habitual residence of the child, in order to take measures directed to the protection of the child’s property or person.

If the minor’s habitual residence cannot be established, the Croatian authorities will be competent if the minor is in Croatia (the same applies to refugee children and children internationally displaced because of disturbances occurring in their country).

2

Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

Under Croatian law, a person is considered a minor up until the age of 18 years. Ceasing to be a minor, the person gains full legal capacity.
There are different possibilities for gaining different levels of legal capacity.
The Croatian Inheritance Act grants legal capacity to assemble a valid will to a person aged sixteen or older, provided he/she is capable of reasoning (which is presumed).
The Croatian Labour Act grants legal capacity to conclude a valid working agreement to a person aged fifteen or older, as specified below.
A minor aged fifteen or older may dispose of his/her assets gained in the course of work based on a working agreement concluded according to the provisions of the Croatian Labour Act, provided he/she does not jeopardise his/her support and contributes to his/her education.

The Croatian Family Act enables a person aged sixteen or older to gain full legal capacity if the person in question enters a marriage, as specified below.

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

Yes.

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

The Croatian Family Act enables a person aged sixteen or older to gain full legal capacity if the person in question marries.
In order for a minor to get married, the court has to grant him/her permission to do so. In the given case, the court has to examine the minor’s maturity and whether a marriage would be in his/her best interest in a special non-contentious procedure. The competent courts are the municipal courts.
The Croatian Inheritance Act grants legal capacity to assemble a valid will to a person aged sixteen or older, provided he/she is capable of reasoning (which is presumed). No further approval is required for the validity of such a will.
The Croatian Labour Act grants legal capacity to conclude a valid working agreement to a person aged fifteen or older, provided the following conditions are met: the person in question has finished mandatory primary education (eight years); the legal representative of the minor has authorised the minor to conclude the agreement; the position in question does not endanger the minor’s health, security, moral or development (defined more thoroughly by a lex specialis).

3

Who has the general right of custody of a minor?

The Croatian Family Act grants both parents joint custody of a minor.
The court shall deprive a parent who abuses his/her parental rights and obligations or neglects his/her parental responsibilities of his/her right of parental custody.

3.1 What is the scope of the right of custody?

The general definition of the scope of rights of custody (set out by the Croatian Family Act) includes care about rights and obligations concerning the property of the minor, as well as his/her personal rights and obligations, especially those concerning his/her health, upbringing and education.

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian?

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

The Welfare Centre acts ex officio, upon receiving information from other bodies (e.g. the court).
If a minor is left with no living parents, or both parents are deprived of their right of custody, or lack the legal capacity, or are in any other way hindered from performing duties of custody, the Welfare Centre will appoint a custodian. The Welfare Centre may appoint another person, a foster family or a competent legal person as the minor’s custodian.
If a parent leaves an anticipated power of attorney (Anticipated Order), designating a specific person for this case, the Welfare Centre is obliged to respect the parent’s wishes if other conditions (see below) set out by the Croatian Family Act are met and the decision is in the best interest of the minor. An Anticipated Order is validly assembled in the form of a notarial act (authentic instrument).
The custodian’s duties include a set of obligations that are not to be separated.
The Croatian Family Act defines a custodian as a person designated by the Welfare Centre who has the characteristics and necessary skills to perform the duties of a custodian and who accepts being appointed custodian, if that is in the best interest of the minor.
The definition is narrowed down more thoroughly by negative conditions:
A person cannot be appointed custodian if:

he/she was deprived of his/her parental rights
he/she has lost his/her legal capacity
his/her interests are contrary to those of the minor in question
according to his/her prior conduct, it is to be expected that he/she will not duly fulfil duties of a custodian
he/she has entered a life-care contract with the ward
his/her spouse has entered a life-care contract with the ward

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

The Croatian Family Act grants both parents joint custody of a minor. If the parents live separately, they are obliged to settle the question of joint custody through a joint custody plan. If the parents cannot reach an agreement, the court will make the decision for them, respecting the best interest of the minor.
This rule applies to married and unmarried couples.

3.4 May the right of custody be transferred to another person by means of a power of attorney?

Yes.

3.4.1 Is the consent of all custodians to the transfer mandatory?
3.4.2 Are there any restrictions to this type of power of attorney (for example the right of custody may not be transferred in its entirety?
3.4.3 What are the formal requirements for this type of power of attorney?

The right of custody may be transferred to another person informally for a period of up to 30 days. For a period exceeding 30 days, a written power of attorney with a certification of signature is required. If both parents perform joint custody, the consent of both parents is required. If the mentioned period exceeds six months, the Welfare Centre will examine the conditions and, if found necessary, file a proposal to the court, to take measures for the protection of the welfare of the minor.
The rights of custody may be transferred in their entirety with general restrictions regarding the custodian’s capacity to change the personal status of the minor (his/her name, nationality, health related issues, etc.), that would require additional approval by the competent bodies, or legal questions only the ward may decide on (provided other conditions are met – entering a marriage, divorce of a marriage, filiation, etc.).
The power of attorney has to be assembled in written form and the signatures of the parents have to be certified.

4

Who has the general right of legal representation of a minor?

Both parents have joint general right of representation of a minor.
Physical and legal persons other than the minor’s parents may be appointed legal representatives of the minor in question by a court decision if one or both of the parents are deceased, missing, or deprived of right of custody leaving the minor without a legal representative.

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

4.1.2 Is the competent authority free in its choice of a new legal representative

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

The Welfare Centre shall (ex officio) appoint a custodian in case the minor’s parents are deceased, missing or have lost their legal capacity.
The custodian acts as the minor’s legal representative with certain restrictions.
Restrictions include decisions about the choice or change of choice of the minor’s education or employment, relevant personal issues (health-related, personal status-related) and disposing of the minor’s assets.
For these decisions, permission from the Welfare Centre is required.
The Welfare Centre appoints a custodian according to the minor’s best interest.
If a parent leaves an anticipated power of attorney (Anticipated Order), designating a specific person for this case, the Welfare Centre is obliged to respect the parent’s wishes if other conditions set out by the Croatian Family Act are met and the decision is in the best interest of the minor.
The prescribed form for an anticipated power of attorney is a notarial act.
The right of legal representation belongs to minor’s parents jointly, or to the appointed custodian (in a narrowed scope, as mentioned above) and cannot be distributed according to different areas.

4.2 Are there any restrictions / extensions for the legal representative(s)?

Yes.
Parents as legal representatives are competent to act on behalf of the minor. Their competence is narrowed down for the purpose of protection of the best interest of the minor.

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Legal representatives of a minor are not competent to draft a last will, or enter into a marriage on behalf of a minor.

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Unless one parent was deprived of his/her parental rights, or lost his/her legal capacity, joint custody means joint right of representation.

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

If both parents live in the same household with the minor and share joint custody, they exercise their legal representation consensually. Consensuality is presumed. Lack of consensuality determined post festum may render a legal action invalid.
If the parents do not share the same household, written consent is required for decisions relating to relevant personal issues (change of name; change of residence, choice or change of religion; admission of paternity).

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

Married and unmarried couples have equal rights.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

Parents may dispose of the minor’s assets only for the purpose of support of the minor provided a court grants them permission to do so in a non-contentious proceeding.

According to the Croatian Notarial Act, the appropriate form for such a transaction is a notarial act. Failure to meet the condition regarding the form renders the transaction invalid.
The custodian acts as the minor’s legal representative with certain restrictions.
Restrictions include decisions about the choice or change of choice of the minor’s education or employment, relevant personal issues (health-related, personal status-related) and disposing of the minor’s assets.
For these decisions, permission from the Welfare Centre is required.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

See above

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Permission has to be granted prior to the transaction. A lack of permission renders the transaction invalid.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

Parents may not dispose of the minor’s assets if those are gained through inheritance or donation of a gift, if it was the testator’s/donor’s will to hinder the parents’ disposition.

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

There are no specific restrictions relating to the right of a minor for the persons having the right of custody or the right of legal representation of a minor in addition to the restrictions specified above.

4.4 May the right of representation be transferred to another person by means of a power of attorney?

Yes.

4.4.1 Is the consent of all legal representatives to the transfer mandatory?

4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?

4.4.3 What are the formal requirements for this type of power of attorney?

The right of representation may be transferred to another person by means of a power of attorney (Anticipated order) in case the legal representative loses this capacity due to death or loss of legal capacity. The Welfare Centre is obliged to respect the parents’ wishes regarding the choice of guardian if the person chosen meets the general requirements for a guardian and the decision is in the best interest of the minor.
The prescribed form for the Anticipated order is a notarial act.
The transfer of right of representation refers to a transfer of rights of representation in general and cannot be narrowed down to a certain scope of transactions.

5

How can the custodian / representative prove his/her right?

A custodian/representative can prove his capacity by presenting the decision of the Welfare Centre, designating him/her.

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

A parent may prove his/her capacity by presenting an excerpt from the birth register of the minor.
A custodian may prove his/her capacity by presenting a decision of the Welfare Centre, by which he/she was appointed.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

No, there is no other kind of document proving the right of custody/representation, aside from the court approval and other conditions for validity of transactions including the minor’s valuable assets mentioned under 4.2.

6

According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

A minor aged 14 or less may travel abroad accompanied by an adult who is not his/her legal representative (parent or guardian) provided the legal representative (both parents or guardian – designated physical person, a foster family, or a competent legal person) has granted written consent.

If the minor travels accompanied by only one parent, the consent of the other is presumed if both parents live in the same household. If not, written consent of the other parent is required.

Signatures on the consent have to be certified by a notary.

At some point in life, it may be useful to get someone to help you with certain (administrative) tasks, such as making a payment or deciding on a purchase. It is also possible to leave these tasks entirely to someone else, due to illness or mental health problems. As soon as you are no longer able to look after your own interests fully, someone else can do it for you, so that, for example, you do not run the risk of missing payment deadlines.

This section contains information on the different types of protection that exist and explains how to anticipate possible future incapacity. The section is divided into several parts and by clicking on the subject of your choice, the relevant information is displayed.

Part 1

Protective measures for adults with diminished capacity

Part 2

The possibilities of anticipating a future loss of capacity

1. Protective measures for adults with diminished capacity

Part 1: Protective measures for adults with diminished capacity

The Croatian legal system, in art. 232–246 of the Family Act, provides that the protection of adult persons with reduced or deprived legal capacity, and their property, is exercised via guardianship (skrbništvo). Decisions on the restriction of the legal capacity are made by the municipal court, while decisions on the appointment of guardians are made by the welfare centre (art. 236 and 237 of the Family Act). When the court proceedings are instituted, the welfare centre – provided that the individual against whom the proceedings have been initiated has not authorised a proxy – shall appoint a special guardian on an interim basis in the capacity of defence counsel in those proceedings (art. 236 of the Family Act). In this case, the proxy would be an attorney-at-law who was appointed by the individual against whom the proceedings have been initiated to represent him instead of the person previously designated as their special guardian in the event of future court proceedings regarding their legal capacity.

The municipal court shall deprive of legal capacity adults who, due to mental disabilities or for other reasons, are unable to protect their own rights, needs or interests, or who endanger the rights and interests of individuals for whom they care.

The judge will decide, on the basis of an expert medical opinion, on the state of health of persons for whom proceedings for deprivation of legal capacity have been initiated, and on how their health is impacting on their ability to protect their right(s), or if they are endangering the rights and interests of others.

If the court decides to completely deprive or restrict the legal capacity of an adult, the competent welfare centre shall appoint a guardian to that individual. The scope of the guardianship for that person depends on the court’s decision to restrict their legal capacity (art. 234 of the Family Act). In the implementation of guardianship, it is necessary to strive for the lowest level of restrictions possible on the rights of wards, as well as to encourage independent decision-making by wards and provide them with support in decision-making, as well as their involvement in community life (art.233 of the Family Act).

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United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006

The global move towards a new understanding of the problems of people with physical or mental disabilities, or with other limitations affecting their legal capacity, gave rise to the New York Convention on the Rights of Persons with Disabilities, adopted by the United Nations on 13 December 2006 (ratified by Croatia on 15 August 2007). The principles guiding the Convention are the value of the rights of persons with disabilities, their dignity and autonomy, including the freedom to make their own choices.

Authority competent to appoint an official guardian

In Croatia, the authorities competent to appoint an official guardian are the welfare centres.

Possibility of appointing several guardians to handle different matters (right of custody, administration of property)

Under Croatian law several guardians may be appointed to handle different matters, but the welfare centre must decide whether decisions relating to specific actions or proceedings must be taken by the appointed guardians jointly or individually. Also, in special cases (e.g. in case of a conflict of interest between the appointed guardian and the ward) the court or welfare centre shall appoint a special guardian on an interim basis in proceedings or disputes regarding property, i.e. when the guardian and ward are concluding certain legal transactions (art. 241 of the Family Act).

Restrictions imposed on the guardian and control exercised by the courts or by another authority over certain legal transactions

In order to take important measures (and/or dispositions) regarding the ward, their personal situation, their health or property, depending on the matters in respect of which they have been deprived of legal capacity, the guardian needs the prior approval of the welfare centre, while in some specific situations guardians are not allowed to make decisions, but only propose that the court issue such decision.

In the context of succession proceedings

When the statements and actions made in succession proceedings could lead to disposition of the ward's property rights, such as in the case of the waiver of the succession, division of the estate between the heirs, waiver of the right to the reserved share or recognition of a creditor’s claim, the guardian must obtain the prior approval of the welfare centre (art. 261 of the Family Act). On the other hand, there is no need for the preapproval of the welfare centre to accept a succession on the ward’s behalf.

As part of estate management

Croatian legislation does not specify rules regarding the different property regimes, but merely specifies a difference between ordinary and extraordinary tasks (acts) of property (estate) management. Accordingly, when a guardian is conducting ordinary tasks of management, he is authorised to act solely (in accordance with the decision of the welfare centre on appointment of the guardian) but whenever he conducts extraordinary tasks, he must obtain the prior approval of the welfare centre.

For any task which is not considered as regular in the ward’s estate management, especially if the guardians intend to alienate or mortgage a ward's immovables (sale/transfer/mortgage of building or other immovables), or alienate a ward's movables of significant value, or dispose of the ward's property rights (sale/transfer of a company) they must obtain the prior approval of the welfare centre (art. 261 of the Family Act). Any tasks regarding the common property regime which are not ordinary acts, such as the division of common property regime, also require the prior approval of the welfare centre.

When performing tasks related to extraordinary property management, guardians may not, as a rule, encumber or alienate more than two-thirds of the total value of the ward's property (art. 261 of the Family Act).

Other situations

To undertake significant measures pertaining to the individual, their personal situation (e.g. change of name, change of residence or domicile, accommodation in a nursing home, etc.) or their health (e.g. decision on invasive medical procedures, a medical decision on the application of unconventional therapy, etc.), depending on the matters in respect of which the ward has been deprived of legal capacity, guardians need the prior approval of the welfare centre (art. 259 of the Family Act).

Guardians represent their wards in undertaking legal affairs and actions in relation to which the ward has been deprived of legal capacity, but only the ward can make certain statements, i.e. make certain decisions: acknowledgment of paternity, consent to acknowledge paternity, consent to marriage, consent to divorce, consent to enter into a relationship (partnership) with persons of the opposite or the same sex and termination of those partnerships, consent to adoption, a decision to terminate a pregnancy and a decision to participate in biomedical research (art. 257 and 258 of the Family Act) .

Only the court, either following a proposal by the ward or a proposal by the guardian, may issue a decision on sterilisation of the ward, organ/tissue donation by the ward, or life support measures for the ward (art. 260 of the Family Act).

Recognition of decisions/acts relating to protection measures issued by the authorities of other Member States

In the matter of recognition of foreign decisions relating to protection measures which are not regulated by international conventions or EU law, the procedure and requirements are prescribed by art. 65 to art. 73 of the Private International law Act.

These requirements are:

-the decision must be final (res judicata);

-the right of a person to participate in the proceedings in which the decision has been made must not have been violated;

-there is no exclusive jurisdiction of a court or other body of the Republic of Croatia in that matter;

– foreign jurisdiction must not have been established solely on the basis of the presence of the person or their property in the location of the court, and that presence is not directly related to the subject matter of the proceedings;

-there must not be a final decision (res judicata) of a Croatian court or a decision of a foreign court which already became final in the same matter;

-the recognition of such a decision must not be contrary to the public order of the Republic of Croatia.

2. Possibility to anticipate a future loss of capacity

Part 2: The possibilities of anticipating a future loss of capacity

Croatian law, through the provisions of the Family Act, provides for the possibility of appointing a trusted person or the possibility of making certain future medical decisions in preparation for the loss or restriction of legal capacity (art. 236, art. 247 and art. 260 of the Family Act). Through the provisions of the Act on the Protection of Persons with Mental Illness, it provides for the possibility of appointing a trusted person in case of loss of capacity to make decisions on certain medical procedures prescribed by the Act on the Protection of Persons with Mental Disorders (art. 68 of the Act on the Protection of Persons with Mental Illness).

The use of living wills/enduring powers of attorney is prescribed to ensure that the will of persons who lose their capacity (either legal capacity or capacity to make decisions about medical procedures) is respected, either by appointment of the trusted person, or by respecting the decisions made previously on sterilisation, organ/tissue donation or life support measures.

Any person who has not been deprived of legal capacity may appear before a notary to propose the trusted person they wish to be appointed by the welfare centre as their guardian or special guardian in case of their future loss of capacity. The individual may only designate a potential guardian/special guardian but cannot specify the measures or criteria to be taken into account with regard to their own person or their property (art. 241 and art. 247 of the Family Act).

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By designating a trusted person, on the basis of the provisions of the Family Act, the individual ensures that in the case of the future loss of legal capacity:

– a trusted person shall be appointed as their guardian or special guardian;

If a trusted person, by the enduring power of attorney provided for in the Family Act, is designated as a special guardian, then they will be appointed by the competent welfare centre as a representative (defence counsel) in the court proceedings in which the decision on legal capacity is made. A special guardian will also be appointed as a representative when the person has already lost legal capacity, replacing the regular guardian, in particular in relation to legal affairs (e.g. when there is a conflict of interest or dispute between the regular guardian and the ward; art. 241 of the Family Act).

However, if a trusted person is designated as guardian, then that person will be appointed by the competent welfare centre as the regular guardian once the competent court has revoked the legal capacity of the person who designated them. Trusted persons as appointed guardians, in accordance with the provisions of the Family Act, undertake significant measures (and/or dispositions) regarding the ward, their personal situation, their health or property (art. 247 of the Family Act).

Living wills/enduring powers of attorney are generally not effective prior to the occurrence of disability. They can only become effective when the special guardian is designated as representative (defence counsel) in the proceedings in which the court decides on the legal capacity of the individual.

Binding nature of the proposal for the court/authority

The guardian/special guardian proposed by the trusted person is binding upon the welfare centre provided that the designated individual meets the requirements prescribed for a guardian (art. 241 and art. 247 of the Family Act).

Possible judicial oversight

Checks on the guardian/special guardian’s work and actions are performed by the competent welfare centre through regular (and extraordinary) reports by the guardian and complaints filed by the ward or interested parties (e.g. the ward’s relatives, health facilities, social institutions, etc.; art. 262 and art. 279 of the Family Act).

Persons who may be designated as representatives and the possibility of proposing more than one person as guardians/curators

It is possible to propose any individual who meets the requirements prescribed for a guardian in the Family Act; similarly it is possible to propose more than one person as guardian (art. 247 of the Family Act).

Under the provisions of the Family Act, any individual can act as a trusted person unless they:

-have been deprived of custody rights;

-have been deprived of legal capacity,

-have a conflict of interest with the ward;

-given their behaviour and characteristics and their relationship with the ward, cannot be expected to properly perform the duties of a guardian;

-(or their spouse/partner) have previously entered into a lifetime caregiver agreement with the ward (art. 248 of the Family Act).

Possibility of proposing more than one person for the right to administer assets and custodial rights

The provisions of the Family Act do not specify that the individual can propose several persons who will have different responsibilities to administer assets and custodial rights for the ward. It is, however, possible to propose several individuals to be appointed as his/her guardians, and the welfare centre can subsequently, when the proposed trusted persons are appointed, decide whether they will be authorised to make decisions regarding the ward (assets or custodial rights) solely or jointly.

Power of attorney procedure.

Enduring power of attorney must be issued in the form of an authentic instrument (notarial deed, art. 236, art. 241, art. 247 and art. 260 of the Family Act).

Recording a power of attorney in the register.

Enduring powers of attorney issued under the provisions of the Family Act are not entered in any form of official register.

Persons may give advance instructions regarding life support measures in the form of advance directives on medical treatment. The purpose of these advance directives is to provide instructions on acceptable medical procedures that may be applied if the person does not have the capacity to express their willingness to accept or refuse medical treatment. There is no option to appoint a trusted person, who would then make a decision regarding the medical procedures (treatment), other than those prescribed by the Act on the Protection of Persons with Mental Illness, or who would ensure that any advance directive by the person regarding life support measures is respected (art. 260 of the Family Act), but if the person is designated by the enduring power of attorney prescribed by the Act on the Protection of Persons with Mental Illness as a trusted person, then they will make decisions only in relation to the medical procedures prescribed by the Act on the Protection of Persons with Mental Illness (art. 68 of the Act on the Protection of Persons with Mental Illness).

Under the provisions of the Act on the Protection of Persons with Mental Illness, the trusted person can be any individual who is at least 18 years old and who has not been deprived of legal capacity (art. 70 of the Act on the Protection of Persons with Mental Illness).

By giving advance directives, on the basis of the provisions of the Family Act, the individual ensures that, in the event of their future loss of legal capacity:

-their specific decisions on sterilisation, organ/tissue donation or life support measures will be respected (art. 236 and art. 247 of the Family Act).

If the individual, in their advance directive on medical treatment prescribed by the Family Act, makes decisions about sterilisation, organ/tissue donation or life support measures, then the court will not rule on those matters (art. 260 of the Family Act).

Measures covered by advance directives on medical treatment

The Family Act, which prescribes the possibility of issuing an advance directive, does not specify measures but merely provides the possibility that a person can decide on future life support measures (art. 260 of the Family Act). An individual can also designate a trusted person who will make decisions only on the medical procedures prescribed by the Act on the Protection of Persons with Mental Illness (art. 68 of the Act on the Protection of Persons with Mental Illness).

Possible judicial oversight

There is no possibility of judicial oversight of advance directives on life support measures prescribed by the Family Act.

Checks on the trusted person’s directives on medical procedures prescribed by the Act on the Protection of Persons with Mental Illness are performed by the competent court on the initiative of the welfare centre when it is notified by a psychiatric facility about the trusted person’s decision (art. 72 of the Act on the Protection of Persons with Mental Illness).

Binding nature of the advance directive on medical treatment for the patient’s caregivers and trusted persons

A person’s advance directive on life support measures must be respected by the caregiver (medical staff) as well as by the guardian (if a guardian has been appointed; art. 260 of the Family Act).

Conditions for the form of an advance directive on medical treatment

Advance directives must be issued in the form of an authentic instrument (notarial deed; art. 260 of the Family Act).

The appointment of a trusted person who will make decisions on the medical procedures prescribed by the Act on the Protection of Persons with Mental Illness must be issued in the form of an authentic instrument (notarial deed; art. 68 of the Act on the Protection of Persons with Mental Illness)

Recording of advance directives on medical treatment in the register

There is no possibility of recording advance directives on life support measures in any official register, while enduring powers of attorney issued under the provisions of the Act on the Protection of Persons with Mental Illness must be entered into the Register managed by the Croatian Notaries Chamber.

Case of conflict of interest between an advance directive on medical treatment and the wishes the patient has stated in another context of organ donation

Croatian law does not provide the solutions for these kinds of cases

The Vulnerable in Croatia

1 Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

2 Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

3 Who has the general right of custody of a minor?

4 Who has the general right of legal representation of a minor?

5 How can the custodian / representative prove his/her right?

6 According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?

1. Protective measures for adults with diminished capacity

2. Possibility to anticipate a future loss of capacity

_Data protection

1

Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

2

Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

3

Who has the general right of custody of a minor?

4

Who has the general right of legal representation of a minor?

5

How can the custodian / representative prove his/her right?

6

According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?