The convention entered into force in Estonia on 1 June 2003.

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 according 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. Moreover, according to §§ 65, 66 of the Private International Law Act the law of the state where guardianship or curatorship is established applies to the guardianship or curatorship.

Family law relationships between a parent and a child shall be governed by the law of the state of residence of the child.

The residence of the minor is deemed to be the residence of the parents or guardian of a minor with restricted active legal capacity. If the parents live apart, the residence of the parent with whom the minor resides is the residence of the minor. If a minor with restricted active legal capacity does not live together with his or her parents or guardian, the place where the minor permanently or primarily resides may, with the consent of a parent or the guardian, be deemed to be his or her residence (the General part of the Civil Code).

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

The authority of a state where the place of residence of the child is has jurisdiction on questions of custody.

Jurisdiction is determined on the basis of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children and Private International Law Act.

Depending of the circumstances, the legal base for determining the jurisdiction is established on the basis of Council Regulation 2201/2003/EC concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. According to the abovementioned regulation, the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

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

The authority is established according to the same rules as the right of custody described in point 1.2.

Private International Law Act can be found in English at: https://www.riigiteataja.ee/en/eli/ee/526062017004/consolide/current

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/ee/528032016001/consolide/current

A person is considered to be a minor up to 18 years of age.

Persons who have attained 18 years of age (adults) have full active legal capacity and persons who are under 18 years of age (minors) have restricted active legal capacity. The court may extend the restricted active legal capacity of a minor who is at least 15 years old. In this case, the court decides which transactions may be concluded by the minor independently (§ 8, 9 of the General Part of the Civil Code Act).

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?

The court may extend the restricted active legal capacity of a minor of at least 15 years of age if this is in the interests of the minor and the level of development of the minor so permits. The restricted active legal capacity of a minor may be extended with the consent of his or her legal representative. If refusal to grant consent is clearly contrary to the interests of the minor, the court may extend the active legal capacity of the minor without the consent of the legal representative (§ 9 of the General Part of the Civil Code Act).

With good reason the court may revoke an extension of the restricted active legal capacity of a minor in full or in part.

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.

If the court has extended the restricted active legal capacity of a minor who is at least 15 years old, then the court shall decide the transactions which the minor is independently permitted to enter into. According to the Family Law Act, if the active legal capacity of a minor has been extended then parent’s right of custody does not apply for the acts which the minor is permitted to perform independently.

A minor who is at least 15 years old does not require the consent of a legal representative for making a will in notarised form (§ 27 of the Law of Succession Act).

The court may extend the active legal capacity of a person who has attained at least 15 years of age pursuant to the provisions concerning the extension of active legal capacity of minors for the performance of acts required for the contracting of marriage and for the exercise of the rights and performance of the obligations related to marriage.

Private International Law Act can be found in English at: https://www.riigiteataja.ee/en/eli/526062017004/consolide

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/528032016001/consolide

If neither of the parents of a minor child has the right of representation or if it is not possible to ascertain the origin of a child, a guardian shall be appointed to the child (§ 171 of the Family law Act). A guardian has both, the right of custody over the person and property of the child (§ 116 of the Family Law Act).

The court may deprive a parent of the right of custody in full only if other measures have not yielded any results or if there is reason to presume that the application of the measures is not sufficient to prevent danger.

The court shall involve a rural municipality or city government in the proceedings upon hearing a matter concerning substantial restriction of the right of custody or deprivation of the right of custody in full.

Officials of vital statistics offices or any other government agencies or rural municipality or city government officials, police officers, heads of medical institutions and social welfare institutions, judges, prosecutors, notaries and bailiffs who have information concerning a child in need of guardianship are required to notify the rural municipality or city government and a court thereof according to the usual whereabouts of the person in need of guardianship. The same obligation also rests with the relatives of a child in need of guardianship.

3.1 What is the scope of the right of custody?

Parents have the obligation and right to care for their minor child. The parent’s or the guardian’s right of custody includes the right to care for the person of the child and for the property of the child and take decisions on matters related to the child (§ 116 of the Family Law Act).

Custody over a person is the obligation and right of the caregiver to raise the child, exercise supervision over the child, ascertain the whereabouts of the child and take care of the all-round well-being of the child in any other manner.

Custody over property includes the right and obligation to administer the property of the child and, inter alia, represent the child. This does not preclude the right of the child to administer his or her property independently in the cases provided by law.

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)?

If a parent with the sole right of custody has died or has been deprived of the right of custody in full, a court shall grant the right of custody to the other parent unless it is in conflict with the interests of the child (§ 138 of the Family Law Act).

A parent with restricted active legal capacity does not have the right to represent a child and shall exercise the right of custody over person with respect to a child together with the legal representative of the child. The legal representative of the child is appointed by the court.

If both parents are not able to act then a guardian shall be appointed to the child by the court.

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

The court, after hearing the opinion of the rural municipality or city government.

The court shall apply the relevant measures in the interests of the child if it is not possible for the parents to exercise the right of custody. If necessary, the court shall commence proceedings for appointment of a guardian with respect to the child.

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

If parents have joint right of custody and the right of custody of one parent is suspended, the other parent shall exercise the right of custody alone. If the sole right of custody over a child granted to one parent on the basis of law or a court decision is suspended and there is no reason to expect that the grounds for suspension cease to exist, the court shall grant the right of custody to the other parent if it corresponds to the interests of the child.

If the parent with the sole right of custody has died or has been deprived of the right of custody in full, the court shall grant the right of custody to the other parent unless it is in conflict with the interests of the child. The person whom a parent has appointed legal representative of the child in his or her will or succession contract shall be appointed guardian if suitable.

Upon the selection of a guardian, the personal characteristics, financial situation and ability to perform the obligations of a guardian, the presumed will of the parents and relationship with the child who is placed under guardianship, the need for consistency of raising of the child and the child’s national, religious, cultural and linguistic origin shall be taken into account. Upon the selection of a guardian, the court and rural municipality or city government has the right to require from the person appointed guardian documents and information for the assessment of his or her suitability.

The guardian shall be an adult with full active legal capacity. If a suitable natural person is not found to be appointed as a guardian or if a parent has specified in the will or succession contract that a legal person shall be a guardian, a legal person may be appointed guardian. A guardian may be appointed only with their consent.

A person who has been fully or partially deprived of the parent’s right of custody or who has previously violated the obligations of a guardian shall not be a guardian. An employee of the health care or social welfare institution where a child is staying shall not be appointed guardian of the child.

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 court shall appoint one guardian. Spouses may be appointed as joint guardians.

The court may appoint several guardians if it is reasonable under the circumstances of the case. It is presumed that several guardians have the joint right of representation. The court may specify the duties and the scope of the right of representation of each guardian (§ 178 of the Family Law Act).

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?

Parents have joint custody over their child and it does not matter whether they are married. Parents have the obligation and right to care for their child. If it is not possible for the parents to exercise the right of custody, a court shall apply the relevant measures in the interests of the child.

If parents in exercising their joint right of custody fail to reach an agreement in a matter significant for the child, then the court may, at the request of a parent, grant powers of decision in this matter to one parent.

If parents who have joint right of custody live permanently apart or do not wish to exercise the right of joint custody any further for any other reason then the parent has the right to request in the court proceedings that the right of custody of the child be partially or fully transferred to one parent. The court may resolve a dispute on the right of custody also in divorce proceedings.

The court shall decide on the granting of the right of custody to one parent on the basis of the interests of the child, taking into account, the mental and financial readiness of each parent to raise the child, the emotional relationship with the child and current commitment to caring for the child and the future living conditions of the child.

A petition on the termination of the joint right of custody shall be dismissed if a child who has attained at least 14 years of age objects to the transfer of the right of custody, or if there is reason to believe that termination of the joint right of custody and granting sole right of custody to the petitioner does not correspond to the interests of the child.

If the right of custody belongs to only one parent, the other parent may request of the court that the right of custody of the child is partially or fully transferred to him or her. 

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

The guardian shall not transfer performance of his or her duties to a third person. On the transfer of representation rights please see point 4. Parents have joint custody over their child and they have the obligation to care for their minor child. If it is not possible for the parents to exercise the right of custody, then court shall apply relevant measures in the interests of the child (§§ 116, 117 118 of the Family Law Act).

Private International Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/526062017004/consolide

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/528032016001/consolide

A parent who has the right of custody is the legal representative of a child. Parents who have joint custody have a joint right of representation.

If neither of the parents has the right of representation or if it is not possible to ascertain the origin of a child, then the court appoints the guardian for the child.

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?

Parent who has the right of custody is the legal representative of a child. The court shall apply the relevant measures in the interests of the child if it is not possible for the parents to exercise the right of custody. If necessary, the court shall commence proceedings for appointment of a guardian with respect to the child. The court decides on establishment of guardianship on its own initiative or on the basis of an application of a rural municipality or city government or interested person. Please see point 3 as well.

In general, parents have joint right of custody and representation. If a parent with the sole right of custody has died or has been deprived of the right of custody in full, a court shall grant the right of custody to the other parent unless it is in conflict with the interests of the child.

A parent with restricted active legal capacity does not have the right to represent a child and shall exercise the right of custody over person with respect to a child together with the legal representative of the child.  The legal representative of the child is appointed by the court.

The court shall appoint one guardian. Spouses may be appointed as joint guardians.

The court may appoint several guardians if it is reasonable in the circumstances. Please see point 3.2.3.

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

Please see point 3.2.2 above.

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

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

Yes. The guardian (either parent or appointed guardian) does not have the right of representation or obligations in the area for which a special guardian has been appointed.

A special guardian shall be appointed by the court for the acts which cannot be performed by the parents or the guardian. A special guardian shall be appointed for the administration of property acquired by succession or as a gift if the bequeather or donor has specified that the parents or guardian shall not administer the property.

A special guardian shall be appointed also for transactions where the guardian (either parent or appointed guardian) does not have the right of representation. Please see point 4.2.4.4.

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)?

In addition to the transactions listed in point 4.2.4.2:

• A parent shall not, without the consent of a court, approve transactions for the conclusion of which on behalf a child consent of a court is required by law.
• When the active legal capacity of a minor who is at least 15 years old has been extended by the court then the parent’s right of custody does not apply for the acts which the minor is permitted to perform independently.
• A will made in notarised form by a minor who is at least 15 years old does not require the consent of a legal representative for making the will (§ 27 ofthe Law of Succession Act).
• Parents as representatives of a child shall not give away a child’s property as a gift. As an exception, it is permitted to make ordinary gifts in order to perform a moral obligation or adhere to etiquette.

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?

A parent who has the right of custody is the legal representative of a child. The general rule is that parents have joint custody and joint right of representation.

Parents who have the right of custody may agree on the arrangement of exercising the joint right of representation.

A court may deprive the guardian of the right to represent a ward in certain transactions or in a certain area if the interests of the ward are in significant conflict with the interests of the guardian or a third person represented by the guardian or the spouse of the guardian, direct relative, brother or sister of the guardian.

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)?

Parents who have joint custody have a joint right of representation. 

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).

A parent represents the child alone only if he or she has sole custody over the child or when the powers of decision have been transferred to one parent. The court may take such decision if parents in exercising joint right of custody fail to reach an agreement in a matter significant for the child.

In case the joint declaration of intention of both parents would cause a delay and the delay is in conflict with the interests of the child, then one parent has the right to enter into necessary transactions and perform necessary acts in the interests of the child alone. In this case the other parent shall be immediately informed of the acts.

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).

The general rule is that parents have joint right of representation and therefore, all the transactions made on behalf of the child must be approved by both parents in cases where joint custody or right of representation has not been ended by the court.

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

There is no difference on whether the parents of the child have ever been married to each other.

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?

A parent shall not, without the consent of a court, ratify transactions for the conclusion of which on behalf of a minor consent of a court is required by law as described under point 4.2.4.2 or transactions for which a special guardian shall be appointed as described under point 4.2.4.4.

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 guardian does not have the right of representation or obligations in the area for which a special guardian has been appointed. Please see point 4.2.4.4.

Without prior consent of a court, parents or other persons legally representing the minor (i.e. guardians appointed by court) may not do the following on behalf of a ward (§§ 187, 188 of the Family law Act):

• Dispose ward’s ships entered in the ships register, immovable property or a real right in immovable property belonging to the ward or undertake the obligation to perform such disposals.
• Dispose a ward’s claim directed to the transfer of ownership of ships entered in the ships register, immovable property or a ward’s claim directed to the creation, transfer or termination of a real right in immovable property or undertake the obligation to perform such disposals.
• Enter on behalf of the ward into transactions directed to the acquisition of ships entered in the ships register or immovable property or a real right in immovable property for charge.
• Give for a use ships entered in the ships register or immovable property belonging to the ward.
• Enter into a transaction by which the ward takes the obligation to dispose of all of his or her property, estate, future legal share of an estate or future compulsory portion.
• Wave succession, legacy or compulsory portion or enter into a contract for division of an estate. Consent of a court for the waiver of succession is not required if the child’s right to the estate has arisen as a result of renunciation of succession by the parent who has the right of representation of the child.
• Enter into contract directed to the acquisition or transfer of an enterprise or an organisationally independent part thereof or a contract of partnership directed to the operation of an enterprise.
• Take a loan.
• Acquire or transfer securities.
• Enter into a transaction by which the liability of the ward arises for the obligation of another person or a transaction by which the ward’s property is encumbered in order to secure an obligation of another person;
• Enter into an agreement for the division of common ownership or the preclusion or postponement thereof.
• Enter into a transaction which terminates the ward’s claim, reduces it or the security thereof or creates such an obligation, except in the cases provided in § 186 subsection 4 of the Family law Act. According to the named provision, consent of a court for the disposal of an account belonging to a ward by a guardian is required only in the case a notation is made upon investment of the ward’s money to the credit institution of Estonia or state in the European Economic area, that the consent of a court is required for the disposal of the ward’s account.

Without prior consent of the court, other persons than parents who are legally representing the minor (i.e. guardians appointed by court) may not in addition to the abovementioned transactions lease an enterprise or enter into a residential lease contract, commercial lease contract, insurance contract or any other long-term contract which does not terminate or which cannot be cancelled within one year after the ward becomes an adult.

Without consent of the court parents shall not in addition to the abovementioned transactions (§ 131 of the Family law Act):

• Commence new business activities on behalf of a child.
• Transfer to a child for the performance of a contract entered into by the child or for free disposal of the child such objects for the transfer of which consent of a court is required.

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?

Parents have the joint right of representation of a child. In case the joint declaration of intention of both parents would cause a delay and the delay is in conflict with the interests of the child, then one parent has the right to enter into necessary transactions and perform necessary acts in the interests of the child alone. In this case the other parent shall be immediately informed of the acts. If a parent represents the child independently, consent of the other parent is presumed (§ 120 of the Family Law Act).

A multilateral transaction entered into without the prior written consent of a court is void unless a court approves the transaction later. Approval is valid when the guardian notifies the other party thereof. If a ward has acquired active legal capacity, he or she may approve the transaction himself or herself.

The other party may make a proposal to the guardian to notify him or her of the court’s approval. If a guardian does not grant approval within two weeks from the receipt of the abovementioned proposal, approval is deemed to be refused.

If guardian was required to obtain consent of a court before the transaction and it was not obtained before the transaction, and the other party did not know and should not have known that consent had not been granted then the other party may withdraw the declaration of intention to enter into the transaction. In such case, the declaration of intention is deemed not to have been made. The other party shall not withdraw his or her declaration of intention after the guardian has notified the other party of the approval.

Unilateral transactions made by a minor without the prior consent of a legal representative are void.

A multilateral transaction entered into by a minor without the prior consent of legal representative is void unless the legal representative subsequently approves the transaction. If the person acquires full active legal capacity after entry into the transaction, he or she may approve the transaction himself or herself.

If a minor enters into a transaction without the prior consent of the legal representative, the other party to the transaction may make a proposal to the legal representative to approve the transaction. Approval is valid if it is delivered to the person making the proposal. If the legal representative does not approve the transaction within two weeks the legal representative is deemed not to have ratified the transaction.

The other party to the transaction may withdraw the declaration of intention relating to the entry into the transaction if the minor did not have the prior consent of the legal representative for entering into the transaction and the other party did not know nor should have known that the active legal capacity of the person was restricted. In such case, the declaration of intention is deemed not to have been made. The other party to the transaction shall not withdraw the declaration of intention after the legal representative has approved the transaction.

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 as representatives of a child shall not give away a child’s property as a gift. As an exception, it is permitted to make ordinary gifts in order to perform a moral obligation or adhere to etiquette (§ 129 of the Family Law Act).

The guardian shall not represent a ward in the following transactions (§ 180 of the Family Law Act):

• Where one party is the ward and the other party is the guardian, the spouse of the guardian, a direct relative, brother or sister of the guardian. Such transactions are allowed only in case no direct civil liabilities arise to the ward from the transaction (e.g. gift made for the ward).
• Where the ward waves the claim, which is secured by surety, against the guardian, encumbers such a claim, terminates security of a claim or decreases the security or assumes the obligation to enter into such a transaction.
• In legal disputes between the ward and the guardian, the spouse of the guardian, direct relative, brother or sister of the guardian.
• In legal disputes related to transactions where the ward waves the claim, which is secured by surety, against the guardian, encumbers such a claim, terminates security of a claim or decreases the security or assumes the obligation to enter into such a transaction.

A special guardian shall be appointed by the court for the acts which cannot be performed by the parents or the guardian.

The court may replace the appointment of special guardian with the declaration of intention of a ward, if the appointment of a special guardian would not be justified in the case of the particular act.

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?

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?

Parents have the joint right of representation of a child and the transfer of power should also be made jointly (§ 120 of the Family law Act).

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)?

There are no additional restrictions to the ones described under points 4.2.4.2 and 4.2.4.4.

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

The formal requirements of the power of attorney depend on the transaction. If the law prescribes a certain form for the transaction, then the power of attorney must be in the same form.

Private International Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/526062017004/consolide

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/528032016001/consolide

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

Yes, please see explanations under point 5.2.

5.2 Is there any other kind of document, that proves the right of custo

Yes.

The birth certificate is the document providing information on the parents of the child. It may happen that information about the father is not provided in the birth certificate and in this case the sole custodian and representative of the child is the mother.

A certified copy of a court order, which has entered into force, proves the right of custody if the court has assigned the right of custody only to one parent or when the court has appointed the custodians.

Both the parent and the guardian appointed by the court can provide also a certified extract from the population register.

According to the Population Register Act, data entered in the population register based on vital statistics acts prepared by Estonian vital statistics offices as well as documents issued by agencies of foreign states have the same legal effect as entries concerning vital statistics acts.

Right of representation may be proved by power of attorney.

Private International Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/526062017004/consolide

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/528032016001/consolide

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

It is assumed that a parent, guardian or another responsible adult staying in Estonia together with the minor has right of custody. At the request of the Police and Border Guard Board or the Estonian Security Police, a parent, guardian or another responsible adult is required to prove the existence of the right of custody. There are no formal requirements on the form of the consent when the minor is travelling to Estonia.

Private International Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/526062017004/consolide

Family Law Act can be found in English at:

https://www.riigiteataja.ee/en/eli/519062017013/consolide

Law of Succession Act can be found in English at:

https://www.riigiteataja.ee/en/eli/528032016001/consolide

Part 1: Protective measures for adults with loss of capacity

Active legal capacity of a natural person is the capacity to enter independently into valid transactions. Persons who have attained 18 years of age (adults) have full active legal capacity. The restricted active legal capacity of an adult affects the validity of the transactions entered into by the person only to the extent to which he or she is unable to understand or direct his or her actions (§ 8 of the General Part of the Civil Code Act).

If an adult is permanently unable to understand or direct his or her actions due to mental illness, mental disability or other mental disorder, a court shall appoint a guardian to him or her if an application is made by the individual, his or her parent, spouse or adult child or rural municipality or local council or on its own initiative. (Family Law Act § 203 point 1).

However, if an adult has proposed a guardian before the loss of legal capacity, this proposal shall be taken into account, unless it contravenes his/her interests (Family Law Act § 204 point 3). There are no rules regarding the form in which this proposal can be made.

A natural person deemed suitable to protect the interests of the ward, taking into account his or her own personal characteristics and abilities, shall be appointed guardian. Upon appointing a guardian, the relationship between the guardian and the ward shall be taken into consideration (§ 204 of the Family Law Act)

If a suitable natural person is not found, a legal person may be appointed guardian with his/her consent (§ 205 of the Family Law Act). If it is not possible to appoint a suitable legal person as guardian, the rural municipality or local council of the adult's place of residence shall be appointed guardian. (§ 205 of the Family Law Act)

The Court shall appoint a guardian on its own initiative or on the basis of an application e.g. by a parent, spouse or adult child, or the rural municipality or local council.

Part 1: Possibilities to anticipate a future loss of capacity

The Estonian legal system does not provide for long-lasting powers of attorney or advance directives on medical treatment. 

According to the General Part of the Civil Code, a power of attorney is presumed to end if the representative dies or is placed under guardianship (§ 125 (2)(4)).

Advance directives on medical treatment for individuals who are not able to express their wishes regarding medical treatment do not exist in Estonian law.

However, if an adult has proposed a guardian prior to the loss of legal capacity, this proposal shall be taken into account by the judge at the time of pronouncing the guardianship, unless it is contrary to the ward’s interests (Family Law Act, § 204 (3)). There are no rules concerning the form in which such a proposal may be made.

Please refer to the information contained in Part I concerning individuals who may be appointed as guardians and the restrictions imposed on them in the exercise of guardianship.