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Last update: 12-07-2023

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The Vulnerable in Lithuania

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?

Lithuania is a member 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. It came into effect on 1 September 2004.

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 main criteria used to determine the applicable law for matters of custody and legal representation of a minor are regulated by the provisions set out in the Hague Convention, in chapter three (Articles 15-22). Article 4 of the Hague Convention provides criterion, when the Hague Convention does not apply. In this case, these situations are regulated by the Civil Code of Lithuania.

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

These questions are regulated by Council Regulation (EC) No. 2201/2003, Brussels IIa. In general, matters relating to parental responsibility come under the jurisdiction of the courts of the EU country of habitual residence of the child. In certain cases of relocation, that is of a lawful change of residence of a child, where the courts of the EU country of the former residence of the child have already issued a judgment on parental responsibility (particularly as concerns rights of access), this matter continues to come under the jurisdiction of the courts of that country.

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 (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, national Private International Law rules will be applicable in order to determine the international jurisdiction.

The State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour contributes, with Lithuanian courts, to solving questions of custody. The Courts are the main institution concerning questions of custody and the State Child Rights Protection and Adoption Service is subsidiary, additional, providing information to the court during proceedings. Executing this activity, Lithuanian institutions and courts follow the Brussels IIa regulation, the Hague Convention and other international treaties and the Lithuanian law.

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

Custody and representation of a minor are closely related to each other. So regulation of jurisdiction is the same as specified in the response about jurisdiction of custody (paragraph 1.2).

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)?

In Lithuania, a person is considered a minor until 18 years old.

Despite that, there are different levels of legal capacity:

According to Article 2.7 of the Civil Code of the Republic of Lithuania, minors under fourteen years of age do not have legal capacity. Contracts on behalf and in the name of minors under fourteen years of age shall be concluded by their parents or guardians. Minors under fourteen years of age shall enjoy the right to enter alone into contracts to meet their ordinary and usual needs, conclude contracts aiming at gratuitous personal gain, as well as conclude contracts relating to the use of their own earnings or money provided by their legal representatives or other persons if the said contracts fail to have a prescribed notarial or any other specific form.
According to Article 2.8 of the Civil Code of the Republic of Lithuania, minors over fourteen and under eighteen years of age have a partial legal capacity. This group of minors shall enter into contracts with the consent of parents or guardians. The form of consent shall have to correspond to the form of the contract concluded. Contracts concluded without the consent of legal representatives shall be deemed valid if the consent of the legal representative is given after the contract has been concluded.

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, there is that possibility.

According to Article 2.9 of the Civil Code of the Republic of Lithuania, when a minor is sixteen years of age the court may emancipate him/her after he/she or his/her guardian, parents, institutions of guardianship or he/she him/herself has filed a declaration to that effect with the court if there are sufficient grounds to believe that he/she may exercise all civil rights and discharge his/her obligations alone. In all cases, a minor has to give his/her consent to be emancipated.

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?

Lithuanian courts are 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.

When a person is emancipated, he/she is a fully-fledged civil legal participant and acquires full legal capacity (Article 2.9 of the Civil Code of the Republic of Lithuania).

3

Who has the general right of custody of a minor?

Priority for the right of custody is always given to the parents or one of them or close relatives (grandparents or one of them; brother or sister) of a minor. According to Article 3.165 of the Civil Code of the Republic of Lithuania, parents have a right and duty to bring up their children, be responsible for their children’s education and development, their health and spiritual and moral guidance. In performing these duties, parents have a priority right over the rights of other persons. Despite this, efforts are always made to take into account the best interests of a minor

It is possible for the right of custody to be given to several persons.

3.1 What is the scope of the right of custody?

The main rights of custody are:

to take care of the minor, bring him/her up, represent and protect his/her rights and legitimate interests;
to provide the child with living conditions which are adequate for his/her age, state of health and development level;
to prepare a minor for independent life in a family and in society.

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)?

According to Article 3.264 of the Civil Code of the Republic of Lithuania, when a minor is placed under temporary custody, the minor’s custodians shall be appointed by decision of the director of the municipal administration.

When a minor is placed in permanent custody, the custodians of the minor shall be appointed by a court order on the application of the state institution for the protection of children’s rights.

The right of custody can belong to several persons (for example – husband and wife).

Custody of a minor subsumes custody of the minor’s property, but if necessary, an administrator may be designated to manage the minor’s property. So there is a possibility to have different custodians for different areas. However, these cases are rare.

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?

If the parents are in dispute, the final decision about the right of custody is taken by the court.

When the court is resolving the disputes it always has regard to the interests of the minor and the minor’s wishes. The minor’s wishes may be disregarded only if they are contrary to the best interests of the minor. Also there are other important circumstances: each parent’s ability to provide a proper home for the minor; an environment and the conditions where the minor is going to live; the minor’s degree of attachment to each of the parents, siblings, other relatives; the parents’ moral and other personality traits; the relationship between the minor and each parent; each of the parent’s ability to provide the minor’s education and development conditions.

There is no difference between married and unmarried couples when dealing with custody issues.

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

No, Lithuanian legislation does not provide this possibility.

4

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

According to Article 3.157 of the Civil Code of the Republic of Lithuania, a legally incapable minor is represented by his/her parents under the law, except when the parents have been declared legally incapable in particular area or with limited capacity in particular area, and other cases stated in the Civil Code.

If there is a situation where a minor has only one parent, the general right of legal representation belongs to only one parent.

If the parents do not have the opportunity to exercise their rights and responsibilities, temporary or permanent custody of the minor may be determined. In this case, the right of legal representation is appointed to the custodian who is responsible for various types of legal representation of the minor.

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)?

In the case that one or both parents or other appointed persons are not able to act anymore, temporary or permanent custody of the minor may be determined. The appointed custodian of the minor is also the legal representative of his/her rights and responsibilities. When a minor is placed in permanent custody, the custodians of the minor shall be appointed by a court order on the application of the state institution for the protection of the children’s rights. When a minor is placed in temporary custody, the minor’s custodians shall be appointed by decision of the director of the municipal administration. The right of legal representation can belong to several persons (for example husband and wife).

Custody of the minor subsumes custody of the minor’s property, but if necessary, an administrator may be designated to manage the minor’s property. So there is a possibility to have different custodians, therefore also legal representatives, for different areas, but this is an exceptional case.

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

Yes, there are some restrictions for the legal representative. According to Article 2.134 of the Civil Code of the Republic of Lithuania, the legal representative may not conclude contracts in principal’s name either with himself or with a person, whom he represents at the given time, as well as his spouse, parents, children or other close relatives. These restrictions shall not be imposed in the cases where other laws provide otherwise and where an agent acts as a statutory agent. An agent may not conclude a contract which a principal himself is not authorised to conclude.

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)?

According to Article 1.70 of the Civil Code of the Republic of Lithuania, it is not allowed to enter into a transaction through a representative if, depending on the nature of the transaction, it may be conducted only by the natural person him/herself; the same stands for any other transactions determined by the law. There is no opportunity to draft a last will or enter into marriage.

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?

There is a direct connection between the right of custody and the representation rights. According to Article 3.240 of the Civil Code of the Republic of Lithuania, the custodians must represent their ward under the law and defend his/her rights and interests without any special authorisation.

There are individual and rare cases when both parents have custody but only one has the right of representation. According to Article 3.188 of the Civil Code of the Republic of Lithuania, where there is a conflict of interests between an underage child and one of the child’s parents, the child’s interests shall be represented and transactions shall be made by the parent whose interests do not conflict with those of the child. Also, only one parent can have the right of representation, if another parent is incapacitated.

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)?

According to the main rule, a minor should be represented by both his/her parents. But in some circumstances, only one parent can represent the minor, for example if the parents are divorced. In this case, the legal representative is the parent with whom the minor resides. Also one of the parents can draw up simple transactions on behalf of the minor.

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).

consent to travel abroad for a short period;
consent to treatment in an outpatient clinic by the minor him/herself.

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).

as a rule, all transactions on behalf of the minor should be conducted by 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?

No, there are no different requirements for parents who have never been married.

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?

There are some transactions which must be approved by the court. Parents who want to get permission must go to the court. This process applies a summary procedure.

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.

According to Article 3.188 of the Civil Code of the Republic of Lithuania, these transactions are:

alienate or charge their underage children’s property or encumber the rights to it in any other way;
accept or decline inheritance on behalf of their underage children;
enter into a lease agreement in respect of their underage children’s property for a longer than five-year term;
enter into an arbitration agreement on behalf of their underage children;
enter into a loan agreement on behalf of their underage children for an amount exceeding four minimum monthly wages;
invest the funds of their underage children in excess of ten minimum monthly wages.

The court permission is not necessary if the above-mentioned transactions are concluded in notarial form.

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?

The mandatory approval of the transaction by another person or authority must be given before the transaction. Otherwise, the transaction can be challenged. If the approval required by law is denied, the transaction will not be concluded.

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)?

According to Article 2.134 of the Civil Code of the Republic of Lithuania, the legal representative may not conclude contracts in the principal’s name either with him/herself or with a person, whom he represents at the given time, as well as his/her spouse, parents, children or other close relatives. Such contracts, upon the principal’s request, may be deemed null and void. But this rule is not imposed in cases where the representative acts as a statutory representative, for example representatives of minors.

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?

According to Article 3.185 of the Civil Code of the Republic of Lithuania, when the parents, or one of the parents, cause harm to the child’s interests by mismanaging their underage child’s property, the state institution for the protection of the children’s rights or a public prosecutor may apply to the court for the removal of the parents from the management of the property that belongs to their underage child. Where warranted, the court shall remove the parents from the management of their underage child’s property, revoke their right of usufruct of the child’s property and appoint another person as administrator of the minor’s property. Where the grounds for the removal no longer exist, the court may allow the parents to resume management of their underage children’s property under right of usufruct.

According to Article 3.186 of the Civil Code of the Republic of Lithuania, in managing the property of their underage child, the parents have no right to acquire, directly or through intermediaries, this property or any rights to it. This rule shall also be applicable to auctioning a minor’s property or interests in it. An action to have such transactions declared null and void may be brought by the child or the child’s successors. Also, the parents of an underage child may not enter into a contract of assignment of claim under which they would acquire the right of claim to their underage child’s property or the child’s rights to it.

According to Article 3.189 of the Civil Code of the Republic of Lithuania, parents who manage their underage children’s property under right of usufruct may not assign or pledge or encumber the right of usufruct in any way.

All these restrictions are valid also for the custodians and legal representatives.

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

Parents or custodians of the minor are considered the legal representatives by law. But also, Lithuanian legislation provides the opportunity to transfer the right of representation by power of attorney. According to Article 2.137 of the Civil Code of the Republic of Lithuania, a power of attorney can be a written document granted by a person (principal) to another person (authorised agent) to represent a principal in establishing and maintaining relations with third parties. Also an authorised agent whose rights are not clearly defined in the power of attorney shall enjoy the right to perform only those actions which are necessary for the protection of the principal’s property and property interests as well as the supervision the of principal’s property.

Personal rights and duties of parents cannot be transferred to another person by means of a power of attorney. But parents may authorize other persons by means of power of attorney to conclude certain transactions, etc.

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

Yes, consent for the transfer of legal representation is mandatory. Sometimes sub-delegation can be without consent when it is done in order to protect the interests of the minor.

According to Article 2.145 of the Civil Code of the Republic of Lithuania, which provides that an authorised agent shall have to perform the acts that he/she has been authorised to perform. He/she may re-authorise the other person to perform the said acts only in the cases where such right has been conferred upon him/her by the authority he/she was vested with or where under certain circumstances he/she is forced to do so to protect the principal’s interests. A person, who delegates his authority to the other person, shall have to notify a principal thereof and supply the necessary data about the person to whom the authority was delegated.

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)?

Yes, there are some restrictions. According to Article 2.137 of the Civil Code of the Republic of Lithuania, an authorised agent whose rights in the power of attorney are not clearly defined shall enjoy the right to perform only those actions, which are necessary for the protection of principal’s property and property interests as well as supervision of principal’s property.

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

The power of attorney must be a written document and notarised (authentic notarial document). The term of the power of attorney can be fixed or open-ended. Where the term of the power of attorney fails to be indicated, the power of attorney should be valid for one year as of the day on which it was granted. A power of attorney that fails to indicate the date when it was granted must be deemed invalid.

5

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

In a custody case – custodians of the minor may submit a birth certificate of the minor or the court judgment approving the custody of the minor. If there is a power of attorney (representation based on contract), the representative should submit this document. According to Article 2.138 (1) of the Civil Code of the Republic of Lithuania, powers of attorney must be entered in a public Register of Powers of Attorney. Institutions using this register can verify the authenticity of the power of attorney.

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

Yes, there are some kinds of documents. More information in paragraph 5.

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

Yes, there are other kinds of documents, which provide the right of custody and/or representation. According to Article 2.132 of the Civil Code of the Republic of Lithuania, legal representation can be possible based on contract, law statute, court judgement or an administrative act. So also there can be an administrative act, issued by a public authority.

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?

First of all, according to Lithuanian law, a minor who is travelling abroad must have a valid passport. If a minor travels to a country that has valid international agreements with Lithuania, an identity card can be used. The minor’s birth certificate cannot be applied as a passport or identity card.

A minor can travel abroad alone in countries of the Schengen area without parental consent.

If the minor travels abroad alone in a country which is not in the Schengen area, it is mandatory to have consent from at least one of the parents. But if the minor travels abroad with one of the parents, consent is not mandatory. These requirements apply when the minor travels abroad for a short, temporary period of time.

Consent must be authenticated by a notary or approved by the Lithuanian diplomatic representations, consular officer or village elder.

Consent is required for all children under 18 years old, unless the child is married or otherwise emancipated.

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

Protection measures for adults with loss of capacity

Part 2

The possibilities of anticipating a loss of future capacity

1. Protective measures for adults with diminished capacity

Protection measures for adults with loss of capacity

The Lithuanian legal system provides that the protection of the person and/or property of adults with reduced capacity is exercised by guardianship or curatorship (globa /rupyba), which are instituted by the courts.

On 1 January 2016 amendments to the Civil Code and the Code of Civil Procedure of Republic of Lithuania came into force. The objective of these amendments was to substantially reform legal regulation of incapacity in order to match the requirements set out in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006. These amendments refused total loss of capacity and set out that a person can be declared incapable or partially incapable only in a particular area or in multiple particular areas.

According to Article 2.10 of the Civil Code of the Republic of Lithuania, a natural person who as a result of mental illness is not able to understand the meaning of his/her actions in a particular area or control them may be declared incapable in a particular area. A person declared incapable in a particular area shall be placed under guardianship.

According to Article 2.11 of the Civil Code, the court may impose restrictions on civil capacity in some areas for a natural person who, as a result of mental illness, is not able to understand partly the meaning of his/her actions or control them in a particular area. When a person’s capacity is restricted in a particular area, he or she is assigned a curator.

The difference between guardianship and curatorship is that contracts on behalf of a person declared incapable are concluded by his/her guardian, while a person whose capacity is restricted enters contracts himself/herself with the consent of a curator.

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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 the Republic of Lithuania on 27 May 2010). 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'.

In order to properly implement the provisions of the Convention, the Government of the Republic of Lithuania adopted Resolution No. 1739 “On the Implementation of the United Nations Convention on the Rights of Persons with Disabilities and its Protocol”, which provides for an institutional mechanism for the implementation of the Convention, taking into account the provisions of Article 33 of the Convention. By the above-mentioned Government Resolution, the functions of the coordinating institution in Lithuania were assigned to the Ministry of Social Security and Labour. Other state institutions (Ministry of Education and Science, Ministry of Transport and Communications, Ministry of Health, Ministry of Environment, Ministry of Economy, Ministry of Justice, Ministry of Foreign Affairs, Ministry of the Interior, Ministry of Culture, Statistics Department, Information the Committee on Public Development under the Ministry of Transport and Communications, as well as the Ministry of Social Security and Labour) have been appointed in accordance with their competence to be responsible for the implementation of the provisions related to the respective field of activity.

Authority competent to appoint an official guardian/curator

Under Lithuanian law, the guardian or curator is appointed by the court. According to Article 462 of the Code of Civil Procedure of the Republic of Lithuania, application regarding the declaration of a natural person as incapable in a particular area or of limited capacity in a particular area shall be filed with the district court of the place of residence of the person, whom has been petitioned to declare incapable or of limited capacity in a particular area.

Possibility of appointing several guardians/curators to deal with different areas of life (right of custody, administration of property)

Usually only one guardian is appointed for all matters. However, in cases where a legally incapable person in a particular area or a person of limited active capacity in a particular area has movable or immovable property in need of constant care (an enterprise, land, facility, etc.), the court shall issue an order for the appointment of an administrator of the property. The administrator may be the guardian, the curator or any other person (Article 3.245 of the Civil Code).

Restrictions imposed on the curator/guardian and control exercised by the courts or by another authority for certain legal acts

In the case of guardianship, the guardian shall be entitled to enter into all the necessary transactions in the interests and on behalf of the represented legally incapable ward in a particular area according to the Article 3.240 of the Civil Code of the Republic of Lithuania.

In the case of curatorship, the curator shall give consent for the individual of limited active capacity in a particular area to enter into a transaction, the individual would not be permitted to enter into independently. The curator shall also help the individual of limited competence to exercise his or her other rights and duties as well as protect his or her interests against third parties according to Article 3.240 of the Civil Code of the Republic of Lithuania.

According to Article 3.244 of the Civil Code:

The guardian or the curator shall use the assets and the income generated by the assets of the legally incapable ward in particular area or of the individual of limited active capacity in particular area exclusively in the interests of the legally incapable ward or individual of limited active capacity.
Transactions exceeding one thousand five hundred euros shall require a prior leave of the court.
Prior leave of the court shall be required in all cases where the guardian intends to sell, donate or alienate in any other way the immovable assets or property rights of the ward, to lease them, transfer for use without remuneration, charge or encumber in any way the rights to immovable property or property rights, or to make any other transaction which would cause a reduction in the ward’s assets or the property rights of the ward would be assigned, transferred or encumbered. These rules shall be applicable also in cases where the curator intends to give his or her consent for the individual of limited active capacity to enter into a similar transaction.

In the context of a succession proceeding

Acceptance of the succession

The conclusion of a transaction for the acceptance of an inheritance, when the inheritance is accepted by a person incapable in the field of succession or with limited legal capacity in the field of succession, requires prior court permission.

Waiver of the succession before/after death

Waiver is only possible after death and the authorisation of the court is always necessary.

Division of the estate between the heirs

Inheritance can be divided by a mutual agreement between the heirs. Authorisation of the court is necessary for division of estate between heirs when one of them is legally incapable or of limited capacity.

Waiver of the right to the reserved share

Waiver is only possible after death and the authorisation of the court is always necessary.

Recognition of a creditor’s claim

The creditors of a bequeather have the right within three months from the day of the opening of the succession to make claims against the successors who accepted the succession, executor of the will or administrator of the inheritance, or bring an action in respect of the inheritable property.

The law does not explicitly regulate recognition of a creditor’s claim on behalf of the ward. However, according to Article 3.244 of the Civil Code of the Republic of Lithuania, any transaction regarding the ward’s property exceeding one thousand five hundred euros shall require prior leave of the court.

As part of an estate management

Sale/transfer of building

Prior leave of the court shall be required in all cases where the guardian intends to sell, donate or alienate in any other way the immovable assets or property rights of the ward. This rule shall be applicable also in cases where the curator intends to give his or her consent for the individual of limited active capacity to enter into a similar transaction (Article 3.244 of the Civil Code).

Mortgage

Prior leave of the court shall be required in all cases where the guardian intends to charge or encumber in any way the rights to immovable property or property rights. These rules shall be applicable also in cases where the curator intends to give his or her consent for the individual of limited active capacity to enter into a similar transaction (Article 3.244 of the Civil Code).

Act concerning a common property regime

Prior leave of the court shall be required in all cases where the guardian intends to make any other transaction which would cause a reduction in the ward’s assets or the property rights of the ward would be assigned, transferred or encumbered. This rule shall be applicable also in cases where the curator intends to give his or her consent for the individual of limited active capacity to enter into a similar transaction (Article 3.244 of the Civil Code).

Sale/transfer of company

In accordance with Article 3.244 of the Civil Code, prior leave of the court is required for the sale of a company.

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

Recognition and enforcement of decisions issued by foreign authorities is governed by European Union Law and national law.

2. Possibility to anticipate a future loss of capacity

The possibilities of anticipating a loss of future capacity

Any person with sufficient capacity to act may appear before a notary to propose for the future the person whom he or she wishes to have appointed by the judge as his/her legal representative when he or she is in a situation of incapacity and guardianship, and to establish the measures or criteria to be taken into account with regard to his/her person or property.

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Article 2.137-1 of the Civil Code provides that a person may indicate the person whom he/she wants to be appointed as guardian in advance in case of future incapacity (išankstinis nurodymas). The law requires that a lasting power of attorney be attested by a notary.

In the lasting power of attorney, the person may:

1) indicate the persons who should be appointed by the court as guardians or curators if he or she is declared legally incapable in some field or his/her capacity is limited in a certain area;
2) indicate the persons whom the court should not appoint as his or her guardians or curators if he or she is declared legally incapable in some field or his/her capacity is limited in a certain area;
3) express wishes regarding the place of residence (accommodation in a care institution);
4) indicate a specific person who would resolve issues regarding the implementation of his or her property and personal non-property rights and obligations;
5) provide other instructions.

Binding nature of the proposal for the court/authority

The lasting power of attorney has legal effect before the court. The court has to take into account the wishes of the person stated in the document when deciding on the conditions of the legally incapable person, including the person to be appointed as legal guardian/curator.

Possible judicial review

According to Article 3.246 of the Civil Code, if the guardian or curator is negligent in his or her duties, fails to ensure the protection of the rights and interests of the ward or uses his or her rights for personal gain, the court may remove such a guardian or curator.

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

There are no restrictions as to who may be appointed as guardian. While designating a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances (Article 3.242 point 3 of the Civil Code).

It is also possible to indicate more than one person who could be appointed as a guardian (curator) in the lasting power of attorney. The Civil Code of the Republic of Lithuania also states that a person may include in the provisions of the lasting power of attorney any person whom he/she does not wish to be appointed as a guardian.

Possibility of proposing several persons for the administration of property and the right of custody

It is possible to name several persons responsible for the administration of assets in the lasting power of attorney.

Conditions for the form of power of attorney.

A lasting power of attorney must be notarised, in accordance with the provisions of Article 2.137-1 paragraph 3 of the Civil Code of the Republic of Lithuania.

Registration of powers of attorney in the register.

According to Article 2.137-2 paragraph 1 of the Civil Code, the lasting power of attorney must be recorded in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity. The notary who has attested the lasting power of attorney must transmit it to the register.

Situations with cross-border element:

Substantive law applicable to powers of attorney to avoid the appointment of a guardian by a judge.

According to Article 1.35 of Civil Code of the Republic of Lithuania, guardianship and curatorship of adults shall be governed by the law of the state of an incapable person’s domicile. Cases relating to guardianship or curatorship of persons shall belong to the jurisdiction of the courts of the Republic of Lithuania if the incapable person’s domicile or property is located in the Republic of Lithuania.

The Hague Convention of 13 January 2000 on the International Protection of Adults.

Lithuania is not a contracting party to this Convention.

Conditions for powers of attorney to avoid the appointment of a guardian by a foreign judge to produce effects in your Member State.

According to Article 1.35 of the Civil Code of the Republic of Lithuania, guardianship and curatorship of adults shall be governed by the law of the state of an incapable person’s domicile. Cases relating to guardianship or curatorship of persons shall belong to the jurisdiction of the courts of the Republic of Lithuania if the incapable person’s domicile or property is located in the Republic of Lithuania

More informations

Lietuvos Notaru Rumai : Olimpiečių g. 4, LT – 09200 Vilnius, Lietuva

Tel.: +370 – 52 – 61 47 57
rumai@notarai.lt

Fax: +370 – 52 – 61 46 60
www.notarai.lt

The Vulnerable in Lithuania

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)?