Yes, the Czech Republic has been a party to the Hague Convention since 1 January 2002 when it entered in force.

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

The criteria used to determine the applicable law for matters of custody and legal representation are fully regulated by the provisions set out in the Hague Convention; notably, Article 16 § 1 and Article 17 of the Convention set out that the law of the State on whose territory the minor has his/her habitual residence applies to these matters.

Concerning questions falling outside the scope of application of the Hague Convention following Article 4 of the Convention (e.g. establishment or contesting parent-child relationship or emancipation), the Act on Private International Law (Law no. 91/2012 Coll.), sec. 54, 57, 61, 62 and 65, contains provisions on applicable law (usually the law of the state whose national is the minor). However, the applicable law in case of guardianship and curatorship under the abovementioned Act is lex fori, i.e. law of the state whose court has jurisdiction (this is in accordance with Article 15 of the Convention).

If Czech law is to be applied, the respective substantial law rules are contained in the Civil Code (Law no. 89/2012 Coll.), sec. 794 – 975.

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 the Act on Private International Law. Thus, Article 8 of the Regulation in general sets out that the international jurisdiction will belong to the Courts of the Member State where the child has its habitual residence.

If the minor has its 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 (Article 5 Hague Convention).

If the minor has its habitual residence outside the EU in a State which is not party to the Hague Convention, the Act on Private International Law (Law no. 91/2012 Coll.), sec. 56/1, will be applicable in order to determine the international jurisdiction – the respective matter shall be dealt with by the Czech authorities, if the minor is a Czech citizen. Moreover, in accordance with the Brussels IIa Regulation and the Hague Convention, the same section of the Act on Private International Law stipulates jurisdiction of the Czech authorities if the minor has its habitual residence in the Czech Republic (irrespective of the minor’s nationality).

The competent Czech authority in matters concerning minors (including custody) is the district court where the minor has its residence or where he/she resides – General Civil Procedure (Law no. 99/1963 Coll.), sec. 9 and 85, Special Civil Procedure (Law. No. 292/2013 Coll.), sec. 466 and following. However, the Czech embassy can take care of a Czech minor who has its habitual residence abroad and to whom no one exercises parental rights and obligations to the extent of jurisdiction, if such jurisdiction is recognized by a state in which the minor has its habitual residence – Act on Private International Law (Law no. 91/2012 Coll.), sec. 56/2).

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

The same answer as for 1.2.

A minor is a person up to 18 years of age. A minor has, though, a limited legal capacity from 15 years of age (e.g. to draw up a last will before a notary or to sign an employment contract).

Full legal capacity is obtained at 18 years of age, with only two exceptions to this rule –full legal capacity can be obtained earlier:

1. in case of marriage concluded before 18 years of age – the earliest marriage can be concluded is at 16 years of age with permission of the Court
2. by granting full legal capacity to a minor (by a decision of the court and with the consent of the legal representatives of the minor) who is at least 16 and who is able to sustain him/herself.

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

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?

A decision of the court is required to obtain full legal capacity – Civil Code (Law no. 89/2012 Coll.), sec. 37. Full legal capacity can also be extended following the conclusion of a marriage (with the permission of the court). In both cases, the minor becomes legally an adult – with the same rights and duties as the adult. The competent court is the district court where the minor has its residence or where he/she resides – General Civil Procedure (Law no. 99/1963 Coll.), sec. 9 and 85, Special Civil Procedure (Law. No. 292/2013 Coll.), sec. 466 and following.

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.

A minor has the right to make a last will before a notary as of 15 years of age; no other approval is required by law (Civil Code, section 1526). The same applies for the right to conclude a contract of employment (it is possible only after completing elementary education, which is obligatory until 15 years of age). All other common transactions are regarded with respect to the age of the minor.

Respective rules for this section can be found in the Civil Code (Law no. 89/2012 Coll.).

Both parents jointly.

3.1 What is the scope of the right of custody?

Care of property, care for the child, care for the health of the child, moral growth of the child, education, maintenance obligation, defence of the child, legal representation.

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)?

The competent Czech authority in matters concerning minors is the district court where the minor has his/her residence or where he/she resides – General Civil Procedure (Law no. 99/1963 Coll.), sec. 9 and 85, Special Civil Procedure (Law. No. 292/2013 Coll.), sec. 466 and following.

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

In case of death or loss of legal capacity of the parents (but also in the following cases: parents abuse their custody rights towards their children, parents seriously neglect care of their children, parents commit an intentional crime towards their children), and if there is no previous proposal of the parents, the custodian will be appointed by the court from persons related to the family of the child.

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

The competent authority is not free in its choice, because the court must always decide in the interest of the child and has to appoint someone who has a good relationship with the child or his/her family. The competent court shall take into account the previous recommendation from the parents about who should be appointed as a custodian – although this is not binding for the court. On the other hand, the court is bound if the parents have expressly excluded a certain person from becoming a 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 right of custody can belong to several persons (for example a married couple) and it is possible to have different custodians for different areas.

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

There is no difference between married and unmarried couples.

The right of custody will be determined by the court if the parents are not able to reach mutual consent concerning a matter important to the minor. The only criterion is the best interests of the child (regard will be given to the child’s opinion if possible).

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

No.

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?

Respective rules for this section can be found in the Civil Code (Law no. 89/2012 Coll.).

Both parents jointly or only one parent (the consent of the other parent is presumed).

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)?

The legal representative will be appointed by the Court (for a more detailed answer see part 3.2. and 4.2.2. of this questionnaire).

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

The appointment is necessary at the time when both parents are not able to act anymore on behalf of the child. In this case the legal representative will be appointed by the court among persons related to the family or the child without proposal or, if it is possible, on proposal of the parents (see also part 3.2.1 of this questionnaire).

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

The competent authority is not free in its choice at all, because the Court must always decide in the interest of the child and has to appoint someone who has a good relationship with the family or the child.

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

The right of legal representation can belong to several persons and it is possible to have different legal representatives for different areas.

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

Yes.

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)?

Drafting of last will, entering into marriage, parent´s custody, statement of disinheritance

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 that both parents have custody but only one has the right of representation in transactions with some property of a minor?

The power of legal representation is included in parent´s custody. Should one of the parents be limited in his/her legal capacity or should there be a conflict between the interests of the child and the interests of one of the parents, only one of the parents will then be empowered to act on behalf of the minor. Should there be a conflict between interests of the child and interests of both parents, a guardian is appointed by the Court.

4.2.3 Is it required that all legal representatives are concluding the 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)?

Yes, it is possible for the parents to act on behalf of the minor individually, the consent of the other parent is presumed – this pertains to all kinds of transactions. However, if the consent is explicitly denied, it is up to the Court to decide.

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).

Generally, each parent may perform on behalf of the minor in all legal transactions (see part 4.2.3. of this questionnaire).

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).

Generally, each parent may perform on behalf of the minor in all legal transactions (see part 4.2.3. of this questionnaire).

4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

No.

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction is 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?

If the transaction is not a common one, it must be approved by the Court. In case of dispute, it is up to the Court to determine what a common transaction is.

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.

The following are explicitly excluded from common transactions: dispositions with immovable property, burdening the property, acceptance/refusal of a gift or inheritance, concluding a lease contract or a loan contract.

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 will be denied?

There is no difference whether the approval is given before or after, but it is common to approve the transaction after its execution. If approval is denied, there is an option of appeal. However, such a transaction is considered non-existent without the approval of the court.

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)? Please describe the appropriate procedure for resolving the problem if applicable (e.g. nominating another representative, court’s approval).

Yes, in the case of a conflict between the interests of the parents and the interests of the child, the parents cannot act on behalf of the minor. It is necessary to appoint a conflict guardian for the minor. If there is a conflict with the interests of just one parent, the other parent is allowed to act on behalf of the minor.

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

Yes, for example in case of the right of succession. It means that it is necessary to appoint a conflict guardian for the child to defend his/her interests against the parents (if the conflict is with both of them). The same applies for any contract between parents and children. Generally, the child’s property must be duly used and kept for him/her until the child acquires full legal capacity. If the parents violate their obligation of due care of their child’s property, they will be bound to pay damages.

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?

No, it is sufficient to have the consent of one of the parents, but the consent of the other parent is generally presumed. If there is evidence that the second parent does not agree with the transfer of the right of representation, then there is a dispute which must be resolved by the Court. If the consent is given by the child’s guardians, all of them must agree (unless the Court has granted them a right to separate representation).

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 it cannot be transferred in regard to certain transactions)?

There are only general restrictions – the representative must safeguard the interests of the minor and is liable to excess.

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

There are no specific formal requirements for this kind of power of attorney. However, Czech laws may require a verification of the principal’s signature in some cases, which are not exclusively linked to minors (such as immovable property transactions), and in some other cases power of attorney has to be drawn up as a notarial authentic document (if a notarial authentic document is required for the actual legal act). It is also implicitly presumed that the representative has sufficient knowledge to represent the minor properly.

Respective rules for this section can be found in the Civil Code (Law no. 89/2012 Coll.).

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

Yes.

Birth certificate, identity cards of the parents (their children are usually listed), passport, power of attorney. Usually, the identity card/passport is sufficient.

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

Yes.

Court decision.

Czech law does not regulate explicitly this particular situation. Nevertheless, according to the provisions of the Civil Code in the section concerning the responsibility of parents and the representation of a child, the explicit consent of one of the parents would be sufficient.

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

The form of the consent is not regulated, though usually the written consent of the parents with their signatures certified by a notary is used.

Part 1: Protection measures for adults with loss of capacity

The Czech Republic is a party to the United Nations Convention on the Rights of Persons with Disabilities. It came into effect for the Czech Republic on 28 October 2009.  

Czech law (Act No. 89/2012 Coll., the Civil Code) provides for assistance in decision-making (in Czech: nápomoc pri rozhodování; Section 45 et seq. of the Civil Code) and representation by a household member (in Czech: zastoupení clenem domácnosti; Section 49 et seq. of the Civil Code) as the milder forms of protection measures for adults with loss of capacity. As regards the limitation of legal capacity (Section 55 ff.), it is only envisaged in cases where  the more moderate measures (assistance in decision-making and representation by a household member) are not sufficient. Legal capacity may be limited exclusively by a court, which is obliged to appoint a guardian (in Czech: opatrovník). 

Assistance in decision-making offers a way of protecting people with a slight disability. This assistance applies in cases where it is not necessary to take decisions on behalf of the person concerned (appointment of a legal guardian); all that is needed is to assist the person in his or her decision-making.

The person providing such assistance does not act in place of the incapacitated person, but provides support (by providing the necessary information and advice). The assistance agreement enters into force as soon as it has been approved by a court. The assistance may be remunerated, but any such remuneration must be reasonable.

The representation by a household member applies to adults who do not have another legal representative and who are not capable, because of a mental disorder, of acting independently. The legal representative must explain clearly to the principal the nature and consequences of the representation. If the person to be represented refuses his or her consent the representation is invalid. To refuse the representation, the person must simply be capable of expressing his or her wishes.

To become effective, the representation must have been approved by a court. Before ruling, the court must take the necessary measures to ascertain the wishes of the person represented and may rely on a method chosen by the person concerned. The powers of representation cover only routine (ordinary) acts, depending on the usual (normal) conditions of life of the person represented. The legal representative is not entitled to give his or her consent to acts that might permanently impair the person’s mental or physical integrity. 

Non-binding English wording of the Civil Code is available at the following link: http://obcanskyzakonik.justice.cz/images/pdf/Civil-Code.pdf. In cases including foreign elements, Act No. 91/2012 Coll., Private International Law Act may be applicable. Its non-binding English wording is available at this link: http://obcanskyzakonik.justice.cz/images/pdf/Act-Governing-Private-International-Law.pdf.

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

Section 38 et seq. of the Civil Code provides for a preliminary declaration in anticipation of incapacity (in Czech: predbežné prohlášení), which can govern various aspects of life (e.g. wishes concerning the place of residence, property administration, legal representation, etc.). It may determine the way in which certain affairs are managed, provide for the designation of a legal guardian or administrator of property. Theoretically, it may also cover certain issues relating to medical care.