Ukraine acceded to the Hague Convention of 19 October 1996 and ratified it by Law No 136-V (136-16) of 14 September 2006, which entered into force on 1 February 2008.

1. What is the law applicable to matters relating to parental authority and legal representation of minors? On the basis of which criteria is the applicable law defined?

The determination of the law applicable to matters relating to parental authority and legal representation of minors is governed by the provisions of the Hague Convention, in particular Article 16 (1) and Article 17, which stipulate the application of the law of the minor’s country of residence.

Cross-border matters that are beyond the scope of the abovementioned Hague Convention is governed by Law of Ukraine “On Private International Law” namely article 24.

According to the article 24 Law of Ukraine “On Private International Law” establishment and cancellation of guardianship over the minor before the age of 14 or guardianship over the minor before the age of 18, are regulated by lex personalis of a ward. According to the article 16 of the Law of Ukraine “On Private International Law” lex personalis is the law of the state of which an individual is a citizen. If an individual is a citizen of two or more states, his or her lex personalis shall be the law of the state with which an individual has the closest relationship, in particular, has a place of residence or the centre of main interest.

According to the article 24 Law of Ukraine “On Private International Law” obligation of a guardian to accept custody authorities is determined by lex personalis of a person appointed as a guardian. Relations between a guardian and a person placed under guardianship are determined by the law of the state a body of which has appointed a guardian. If a person who is placed under guardianship resides in Ukraine, the law of Ukraine shall apply if it is more favourable for this person.

Guardianship established over citizens of Ukraine residing outside Ukraine is recognised as valid in Ukraine if there are no legal objections to its establishment or to its recognition by the relevant consular office or diplomatic mission of Ukraine.

With regard to a person who is not a citizen of Ukraine and stays in Ukraine, or his or her property located on the territory of Ukraine, if necessary to the benefit of guardianship, measures may be taken to protect the rights and protection of property in accordance with the law of Ukraine. The diplomatic mission or consular post of the state of which the person concerned is a citizen shall be notified thereof without delay.

Nevertheless, it is also necessary to remember that if an international treaty to which Ukraine is a party lays down rules other than those established by the Law of Ukraine “On Private International Law”, the rules laid down in this international treaty shall apply (Article 3 Law of Ukraine “On Private International Law”).

According to the Article 66 Law of Ukraine “On Private International Law” rights and obligations of parents and children, except as provided for in Articles 67, 671, 674 are determined by the child’s lex personalis or the law that is closely related to the relevant relationship and if it is more favourable for the child.

Articles 67, 671, 674 set out lex specialis for general provisions regarding the law applicable to maintenance obligations, maintenance obligations between parents and children and the choice of law agreement in maintenance obligations.

1. Which authority has international and territorial jurisdiction in matters of parental authority?

If the child’s habitual residence is in one of the States Parties to the Hague Convention, jurisdiction is conferred on the judicial and administrative authorities of the Contracting State of the habitual residence of the child which will take measures for the international protection of the child’s property or person (Article 5 of the Hague Convention).

In Ukraine responsible and authorised authorities are courts and guardianship and custodianship authorities in districts, district administrations in the cities of Kyiv and Sevastopol, and executive bodies of city, district (within cities), village, and settlement councils.

1. Which authority has international and territorial competence for representation?

In matters of representation, the same rule applies as for international jurisdiction in matters of parental authority.

In accordance with Article 34 of the CCU, persons acquire majority and full legal capacity from the age of 18.

A minor under 14 years of age is considered a person with partial capacity (Article 31 CCU).

A minor under 14 bears no liability for damages caused by their actions; such liability lies with their parents, adoptive parents, guardians (in cases where the minor is deprived of parental care), or the educational and foster institution responsible for their upbringing and care (Article 1178 CCU).

A minor between 14 and below 18 years of age is considered a person with insufficient capacity (Article 32 CCU).

A minor in this age category is personally liable for breaches of contracts they have entered into independently, as provided by law (Article 33 CCU). Minors aged 14 to 18 bear liability for damages caused by their actions under general rules (Article 1179 CCU).

1. Is it possible in some cases to extend the ability of a minor to exercise (for example, by conferring the right to get married or make a last will)?

Yes, this is possible.

For example, according to Article 34 CCU, if a minor registers a marriage, they acquire full legal capacity from the date of marriage registration. The acquired full legal capacity remains intact even if the marriage is terminated before the individual reaches the age of majority. Additionally, if the marriage is declared invalid for reasons unrelated to the minor’s misconduct, their full legal capacity is retained.

Furthermore, under Article 35 CCU, full legal capacity may be granted to:

• A minor aged 16 or older who enters into an employment contract;
• A minor who is registered as the mother or father of a child;

–         A minor aged 16 or older who wishes to engage in entrepreneurial activities (in such a case, full legal capacity is acquired upon state registration as an entrepreneur).

1. Is the extension of the ability to exercise subject to a (judicial) decision? If so, who is competent to decide on the extension of the exercise capacity?

The granting of full legal capacity is carried out by the guardianship and custodianship authority based on an application by an interested party, accompanied by the written consent of the parents (adoptive parents) or guardian over the minor before the age of 18 years. If such consent is absent, full legal capacity may be granted by a court decision.

The full legal capacity granted to an individual extends to all civil rights and obligations. The termination of an employment contract or entrepreneurial activities does not affect the granted full legal capacity.

2.1.2     Please list the legal acts that a minor can perform alone (e.g. making a will) indicating whether the authorization of another person or authority is necessary to carry out such acts.

Minors under 14 years of age (partial capacity) has the right to independently:

·       Conduct minor everyday (routine) transactions that meet their daily needs, correspond to their physical, intellectual, or social development, and concern items of low value;

·       Exercise personal non-property rights related to the results of intellectual and creative activity protected by law (Article 31 CCU).

Minors aged 14 to 18 years (insufficient capacity)
In addition to the rights listed above, minors aged 14 to 18 years have the right to independently:

·       Dispose of their earnings, scholarships, or other income;

·       Exercise intellectual property rights concerning the results of their creative activity protected by law;

·       Be founders or members of legal entities, unless prohibited by law or the founding documents of the legal entity;

·       Conclude a bank deposit (account) agreement and manage the funds deposited in their name;

·       Conclude agreements for obtaining electronic trust services.

All other legal acts performed by minors require the consent of their parents (adoptive parents) or guardians.

For legal transactions involving vehicles or immovable property, minors require notarized written consent from their parents (adoptive parents) or guardians, as well as permission from the guardianship and custodianship authority.

A minor may dispose of funds deposited in a financial institution in their name by third parties only with the consent of the guardianship authority and their parents (adoptive parents) or guardian (Article 32 CCU).

According to Article 1234 CCU, only individuals with full civil legal capacity may make a will. A will cannot be executed through a representative.

A mother and father have equal rights and obligations concerning their child, regardless of whether they were married to each other (Article 141 of the Family Code of Ukraine (FCU)). Divorce or separate living arrangements do not affect parental rights and obligations unless a court decision restricts one parent’s participation in the child’s upbringing under Article 157 FCU.

According to Article 242 CCU, parents (adoptive parents) are the legal representatives of their minor children.

Guardians over the minors before 14 years and guardians over the minors before 18 years, who are deprived of parental care due to the death of their parents or the deprivation of their parents’ parental rights, shall have the same rights and responsibilities as parents as regard to the protection of their proprietary and non-pecuniary rights of minors.

3.1       What is the scope of parental authority?

Parental authority is granted to ensure moral and property rights of a child.

3.2       Who designates the guardian(s) if a parent/guardian or both parents/guardians have a general disability (e.g. death or loss of ability to exercise)?

In accordance with Article 60 CCU, guardianship over minors before 14 years of age and guardianship over minors before 18 years of age is established if, during court proceedings, it is determined that the minor is deprived of parental care.

According to the Article 61 CCU guardianship and custodianship authorities have the right to establish guardianship over the minors before 14 years and guardianship over the minors before 18 years except for the cases when it is done through the court proceedings.

3.2.1 By whom is the guardian proposed and when is the guardian appointed?

A person who becomes aware that a minor requires guardianship must immediately notify the guardianship and custodianship authorities.

In certain cases, the guardianship and custodianship authorities have the right to appoint guardians over minors below 14 years of age and guardians over minors below 18 years of age.

3.2.2    Is the competent authority free to choose a new guardian?

The freedom to choose a guardian is limited to a certain extent. Guardians are primarily appointed from among individuals who are related to the minor or have close family ties, considering their relationship with the minor and their ability to fulfil the obligations of a guardian (Article 63 CCU). The minor’s preferences are also taken into account when appointing a guardian.

3.2.3    Can more than one person exercise parental authority? Is it possible to appoint several guardians to deal with different areas of life (property administration/protection of the person)?

Yes, under Article 63 CCU, it is possible to appoint one or several guardians for a minor.

If the minor owns immovable property or other property requiring continuous management, the guardian may, with the permission of the guardianship and custodianship authorities, manage the property or transfer the management rights to another person according to estate administration agreement (Article 72 CCU).

3.3       How and by what authority is the exercise of parental authority entrusted to a person if both parents disagree on this issue? In this case, is a distinction made according to whether the couple is married or unmarried?

The guardianship and custody authority or the court may, in the interests of the child, entrust the exercise of parental authority to a single person, if both parents do not agree on the matter. In this case, there is no difference between married and unmarried couples (Article 141 FCU).

3.4       Is it possible to delegate parental authority to another person by a warrant?

The law of Ukraine does not provide for the transfer of parental authority to another person by a power of attorney or warrant.

However, certain functions, rights and obligations in regard to the minor can be temporarily transferred concerning the touristic, sport or educational trips across the border. This is usually done by the permission given by the parents of the minor whose signatures are certified by the notary.

Additionally, parents may entrust the upbringing of the child to third parties or legal entities (Article 151 FCU). Another option is placing the child in a foster care family (Article 252 FCU). The general duration of stay in a foster care family cannot exceed six months.

3.4.1 Must all holders of parental authority/guardian’s consent to this delegation?

Yes, as a general rule, both parents exercising parental authority must give consent for such delegation, except in cases where one parent is deceased.

3.4.2 Are there restrictions on this type of warrant (e.g. prohibition on transferring parental authority in its entirety)?

Yes, these restrictions are defined by law, as parental authority consists of a complex set of personal non-property rights granted to parents due to their biological and kinship connection to the child and cannot be fully transferred to third parties. Only specific rights and obligations that the law permits to be transferred, such as the right to entrust a child to a specialized educational and upbringing institution, may be delegated. Transferring the child’s upbringing to other persons does not release the parents from their parental duties and responsibilities (Article 150 FCU).

3.4.3 What are the formal requirements for this type of mandate?

Foster care arrangements for a child are formalized through a written foster care agreement (Article 253 FCU).

The guardianship and custodianship authorities arrange for the placement of a child facing difficult life circumstances in the care of a foster family. Договір про патронат над дитиною укладається в письмовій формі. The standard foster care agreement is approved by the Cabinet of Ministers of Ukraine.

Parents and adoptive parents of the minor are the legal representatives. Regarding minors with partial and insufficient legal capacity who are deprived of parental care, their legal representatives are their guardians over minors before 14 years of age and guardians over minors before 18 years of age, respectively (Article 242 CCU).

4.1   Who designates legal representatives if a parent or both parents or other persons suffer from general incapacity (e.g. death or loss of ability to exercise)?

In the event of the death of one of the parents or the deprivation of parental authority, the other parent becomes the legal representative of the child, holds the whole parental rights and sole parental responsibility over this child. If a minor remains without parents, it is the guardianship and custody authorities or the court that appoints legal representatives.

4.1.1    Who submits the proposal for a decision on the appointment of a legal representative and when is it made?

Anyone who has become aware that a person needs guardianship, or custody must immediately inform the guardianship and custody authorities (Article 57 CCU).

4.1.2    Is the competent authority free to choose a new legal representative?

Legal representatives are primarily appointed from among individuals who have family or close ties with the minor, taking into account their relationship, personal bonds, and ability to fulfill the obligations of a guardian (Article 63 CCU). The minor’s wishes are also taken into consideration when appointing a legal representative.

During a state of emergency or martial law on the territory of Ukraine, children left without parental care, including children separated from their families can be temporarily placed in a family-type orphanage or foster families within the stipulated maximum number of children who can be placed in such forms of education.

During a state of emergency or martial law in Ukraine, a person who is in a family relationship (including godparents) with an orphan child or a child deprived of parental care and has expressed a desire to take him/her under guardianship or custody, which can be established according to a simplified procedure, based on submission of a relevant application to the children’s affairs service at his place of residence or at the place where the child was found. (Resolution of the Cabinet of Ministers of Ukraine of 22.03.2022 No. 349 “On Amendments to Certain Resolutions of the Cabinet of Ministers of Ukraine Regarding the Protection of Children’s Rights During a State of Emergency or Martial Law“).

4.1.3    Is it possible that several persons have the right to represent the minor? Is it possible to appoint different representatives to deal with different areas of life?

Yes, according to Article 63 CCU, it is possible to appoint one or several guardians over minors. Under Article 242 CCU, such guardians act as legal representatives for the minors.

4.2 Is the right of the legal representative(s) to represent the minor subject to certain restrictions or other rules?

Yes.

4.2.1    Are there areas where the legal representative is not entitled to represent the minor (e.g. for making a will or concluding a marriage)?

The legal representative is not entitled to represent the minor in making a will, concluding a marriage and signing a marriage contract.

4.2.2    Is there a relationship between parental authority and the right to represent a minor (is this right limited to the scope of parental authority, for example)? If both parents have parental authority: can a single parent represent the minor in transactions involving the minor’s property?

Both parents have parental authority and the right of representation. A minor with partial legal capacity is fully represented by its own legal representatives (both parents, guardian over the minor below the 14 years of age) in transactions regarding immoveable property and vehicles. A minor with insufficient legal capacity normally has more freedom in meaning of contractual capacity.

4.2.3    Is it necessary that all legal representatives (e.g. both parents together) perform the legal acts together on behalf of the minor or can the legal representative of the minor (e.g. a single parent) perform the legal act alone?

In some cases, Ukrainian law allows one of the parent to represent minor solely, based on the another parent’s consent certified by a notary. If the parent who has been separated from the child for at least six months does not participate in the education and maintenance of the child, or if his or her place of residence is unknown, the legal acts referred to in the second subparagraph may be carried out without his or her consent.

4.2.3.1  Please list the acts (e.g. waiver of succession) that a legal representative (e.g. a parent) can perform alone on behalf of the minor.

The legal representatives’ powers are defined by the principle that everything a minor with partial or insufficient legal capacity is not permitted to perform may be done by their legal representative, except for legal actions that must be performed personally by the minor (e.g., making a will or concluding a marriage).

4.2.3.2 Please list the acts (e.g. waiver of succession) to be performed jointly by the legal representatives (e.g. both parents) on behalf of the minor.

In case, minor with insufficient legal capacity is entering into a contract that envisages transfer of immovable property, both legal representatives (parents or adoptive parents) are required to give their written consent to sign the contract based on the permission of the guardianship and custodianship authority. For more information, please see the answers provided above.

4.2.3.3 Would the requirement of joint representation be different if the parents were not married?

According to Article 141 FCU, the dissolution of the parents’ marriage or their living separately from the child does not affect the scope of their parental rights or release them from their parental obligations unless one parent’s access to the child has been restricted under Article 157 FCU.

4.2.4 Other restrictions on legal representatives:

4.2.4.1 Is it necessary for another person or authority (e.g. parent, court or local government) to give permission to perform a legal act? What are the formal conditions for such an authorization?

Consent from the other parent is required for certain legal acts. As a general rule, if an act requires authorization from the guardianship and custody authorities, the involvement of the court is not necessary. The legal act must comply with the principle of serving the child’s best interests.

4.2.4.2 List the acts which the minor’s legal representatives may perform only with the authorization of a court or other authority or person authorized by law.

Ukrainian law defines a list of transactions that legal representatives cannot perform without the permission of the guardianship and custodianship authorities (Article 71 CCU).

Legal representatives, including guardians over minors with partial or insufficient legal capacity, cannot:

1.     Waive the minor’s rights to property, including real property rights subject to state registration.

2.     Issue written obligations on behalf of the minor.

3.     Perform transactions involving:

o    Residential immovable property and/or land plots owned or used by the minor.

o    Alienation (including by way of exchange or contribution (transfer) to the authorised (share) capital (mutual fund) of a legal entity or as an entrance, membership and/or targeted contribution of a member of a cooperative), division, allocation of immovable property, an object under construction, a future immovable property, other valuable property, including vehicles, owned by the ward.

A guardian over minors below 14 years of age with partial legal capacity has the right to give consent to the transactions provided for in part one of this Article only with the permission of the guardianship and trusteeship authority.

4.2.4.3 if the authorization of another person (e.g. the other parent) or of an authority (e.g. the court) is required to perform the act, is there a distinction, depending on whether the authorization was given before or after the conclusion of the act? What will be the legal effects on the act itself, if the authorization prescribed by law is refused?

The absence of permission from the guardianship and custodianship authorities for a transaction requiring such approval results in the null and void transaction (Article 224 CCU).

However, the transaction may be desclared as valid by the court at the request of an interested party if it is established that the transaction was in the child’s best interests.

If a minor with partial or insufficient legal capacity performs a transaction without the appropriate permission from their legal representatives, the transaction may be ratified afterward by the parents, adoptive parents or guardian (Articles 221, 222 CCU).

If such approval is not obtained:

·       For a minor with partial legal capacity: the transaction is null and void (Article 221 CCU).

·       For a minor with insufficient legal capacity: the transaction may be declared void by the court upon the request of an interested party (Article 222 CCU).

If both parties to an invalid transaction are minors, each must return what was received under the transaction in its original form. If restitution in kind is impossible, compensation must be made based on current market values.

4.2.4.4 are there certain cases in which legal representatives should not be involved (e.g. in a contract with a parent or family member on behalf of the minor)?

In the event of a conflict of interest between parents and children — i.e. when they are parties to the same contract — a representative of the minor may be appointed by the guardianship and custody authority on a case-by-case basis.

4.3       Are there any other restrictions on the rights of minors (e.g. in the field of succession law) for persons with parental authority or the right to represent the minor?

The guardianship and custodianship authorities may refuse to give permission for transactions involving the minor’s property and request a notary to impose a prohibition on its alienation in cases provided under Part 5 of Article 177 FCU, including:

1) the mother and/or father of the child who applied for the permission are deprived of parental rights by a court in accordance with Article 164 of the FCU;

2) a court, guardianship and custodianship authority or prosecutor has made a decision to remove the child from the parents (or the parent who has applied for permission) without depriving them of their parental rights in accordance with Article 170 of the FCU;

3) a lawsuit has been filed with the court to deprive the child’s parents (or the one who has applied for permission) of parental rights by the persons referred to in Article 165 of the FCU;

4) the person applying for the permit has provided false information about himself/herself that is essential for deciding whether to grant or refuse the permit;

5) there is no agreement between the child’s parents regarding the execution of a transaction with respect to the child’s immovable property;

6) there is a legal dispute between the child’s parents or between one of them and third parties regarding the immovable property for which the child’s parents (or one of them) have applied for permission to make a transaction;

7) the transaction will lead to a diminution of the scope of the child’s existing property rights and/or violation of the child’s legally protected interests.

4.4       Is it possible to delegate the power of representation of a minor to another person through a mandate?

Ukrainian legislation does not provide for the delegation of powers of representation of a minor through a mandate.

4.4.1 Is such a delegation subject to the authorization of all legal representatives?

4.4.2 Is such a mandate subject to restrictions (for example, where the power of representation cannot be delegated entirely or only in relation to certain legal acts)?

4.4.3 what are the formal requirements for such a mandate?

Parents can confirm their rights with the child’s birth certificate, an extract from the civil status register, or a court decision establishing parenthood.

If only one parent is the legal representative, additional documents must be provided, such as:

·  A death certificate of the other parent,

·  A court decision depriving the other parent of parental rights, or

·  An extract from the civil status register where the father of the child is recorded at the mother’s discretion (applicable when the father does not acknowledge paternity, and the mother either does not insist or does not know the identity of the father) (Article 135 of the FCU).

A guardian over the minor below 14 years or below 18 years confirms their powers with the decision of the guardianship and custodianship authority and a guardian’s identification certificate.

The authority of legal representatives (parents, adoptive parents, or guardians) to perform specific legal acts is confirmed by the decision of the guardianship and custody authority granting permission for such acts.

5.1       Does the law provide for the issue of a document proving parental authority or powers of representation?

There are no other documents except as referred to in paragraph 5.

5.2       Are there any other documents proving parental authority or power of representation?

No, there are no other documents.

During the state of emergency, or martial law, travelling outside Ukraine by children under the age of 16 accompanied by one of the parents, grandparents, adult brother, sister, stepmother, stepfather or other persons authorised by one of the parents in a written application certified by the guardianship and custodianship authority, is carried out without the notarised consent of the other parent and in the presence of a passport of a citizen of Ukraine or a child’s birth certificate (in the absence of a passport of a citizen of Ukraine)/documents containing information about the person on the basis of which the State Border Guard Service will allow crossing the state border (according to the Rules for Crossing the State Border of Ukraine).

There are also specific requirements to cross the border for the minors below the age of 18 who are orphans, minors who are deprived of their parents’ care, enrolled to the educational institutions, or minors with severe disabilities and diseases  

A minor is allowed to travel abroad alone without the consent of his/her parents after the age of 16.

6.1 What are the conditions for the formal validity of such consent/permission/authorization?

All documents (cents and permissions) must be presented in a printed hard copy with necessary stamps and seals of the relevant authorities.

In specific cases, written approval signed by the head or deputy head of the regional military administration (certified with an official seal) regarding the child’s travel abroad must be obtained. Such approval must also be approved by the National Social Service of Ukraine and may be provided via electronic communication channels.

Part 1: Protective measures for adults with diminished capacity

Under Ukrainian law, the legal capacity of an adult natural person is categorized into three levels:

a) Full civil capacity, which entails that a natural person is capable, through their own actions, of acquiring civil rights and independently exercising them, as well as fully and independently creating civil obligations, fulfilling such obligations, and bearing responsibility in the event of their non-fulfilment. There is a presumption that a person with full civil capacity is able to comprehend the implications of their actions and is capable of controlling them without any physical or mental (psychological) limitations. (article 30 Civil Code of Ukraine, hereinafter – CCU)

b) limited civil capacity implies that an individual has a mental disorder that significantly affects his or her ability to understand the implications of his or her actions and/or to control them, and/or if he or she abuses alcohol, drugs, toxic substances, gambling, etc. and thereby puts himself or herself or his or her family, as well as other persons whom he or she is legally obliged to support, in a difficult financial hardship (article 36 CCU)

c) Incapacity refers to a state where an individual, due to a chronic, persistent mental disorder, is unable to comprehend the implications of their actions and/or control them. (article 39 CCU).

Due to the absence of an official English translation of the Civil Code of Ukraine and in order to avoid translation difficulties, the term Custodianship will be used as a generic term characterising the institution for the protection of the rights of adult incapacitated natural persons and adult natural persons with limited legal capacity. In turn, to describe the relations concerning the protection of the rights of minors below 18 years (aged from 14 until reaching 18 years) with insufficient civil capacity and minors below 14 years (under 14 years of age) with partial civil capacity, the term Guardianship will be used as a generic term.

At the same time, we draw the readers' attention to the fact that Ukrainian law and legal terminology distinguish between a person appointed to protect the rights of incapacitated persons and minors before 14 years deprived of parental care due to the death of their parents or the deprivation of their parents’ parental rights with respect to such a person—referred to as "opikun"—and a person appointed to protect the rights of persons with limited legal capacity and minors before 18 years similarly deprived of parental care due to the death of their parents or the deprivation of their parents’ parental rights with respect to such a person—referred to as "pikluvalnyk". Full and adequate equivalents for these terms in English legal terminology have not been identified.

“Opika” and “Pikluvannya” are transliterated legal terms from the Cyrillic alphabet to the Latin alphabet.  Therefore, custody over the natural person with limited capacity (Ukr. "pikluvalnnya") refers to the institution designed at protecting the rights of persons with limited legal capacity, whereas custody over the incapacitated natural person (Ukr. "opika") refers to the institution designed at protecting the rights of incapacitated persons.

In exceptional cases, when the person is authorised to care only of the estate and property matters of the incapacitated natural person, natural person with limited capacity or the absentee we will call it curator and the legal institution curatorship which for the purposes of this research will be equivalent to the Ukrainian term “opika” over the estate of the relevant natural persons.

In turn, guardianship over the minor below 14 years of age (Ukr. "opika") refers to the institution designed to protect the rights of minors under 14 years of age who are deprived of parental care due to the death of their parents or the deprivation of their parents’ parental rights. Guardianship over the minor before 18 years (Ukr. "pikluvalnnya") refers to the institution aimed at protecting the rights of minors aged between 14 and before 18 years who are deprived of parental care due to the death of their parents or the deprivation of their parents’ parental rights.

A legally capable adult is a person who has achieved an age of 18 years and has no court judgements that declare him or her as an incapacitated natural person or a natural person with limited legal capacity.

According to Ukrainian law, an individual's legal capacity can be limited or declared incapacitated only in accordance with court judgement.

Pursuant to the article 58 CCU incapacitated persons are subject to «custody over the incapacitated natural person» (opika – transliterated legal term from the Cyrillic alphabet to the Latin alphabet), and pursuant to the article 59 CCU, persons with limited capacity are subject to «custody over the natural person with limited capacity» (pikluvannya – transliterated legal term from the Cyrillic alphabet to the Latin alphabet).

The court procedure for declaring a person incapacitated or with limited capacity is set out in the Civil Procedure Code of Ukraine (hereinafter referred to as the ‘CPCU’) in the articles 295-300 CPCU. In cases concerning the recognition of a person as incapacitated or with limited capacity, a court-appointed psychiatric examination is mandatory to assess the mental state of the individual and determine the degree of mental disorder (Article 298 CPCU). In exceptional cases where an individual evades undergoing a psychiatric examination, the court may issue an order for involuntary psychiatric evaluation (Article 298 CPCU). Court proceedings in such cases require the mandatory participation of a representative from the guardianship and custodianship authority and an advocate of the person subject to the proceedings (Article 299 CPCU).

Incapacity and limited capacity are considered acts of civil status but are not subject to registration in the State Register of Civil Status Acts (Article 49 CCU та Law of Ukraine «On State registration of Civil Status Acts»). 

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

Ukrainian law does not contain explicit provisions regarding preventive or anticipatory actions by individuals at risk of being declared incapacitated or with limited legal capacity. However, such situations can be addressed by using contractual frameworks, such as a lifetime maintenance and care agreement (Article 744 CCU) or an estate administration agreement (Article 1029 CCU), executed with suspensive or resolutory conditions (Article 212 CCU).

Pursuant to Article 212 CCU, parties to a legal transaction may stipulate that the creation or modification of rights and obligations depends on an uncertain future event (suspensive condition). Similarly, they may specify that the termination of rights and obligations depends on an uncertain future event (resolutory condition).

Accordingly, a lifetime maintenance and care agreement (Article 744 CCU) or an estate administration agreement (Article 1029 CCU), may include a suspensive condition stipulating that the agreement takes effect if and when the grantor in the lifetime maintenance and care agreement or the settlor in the estate administration agreement is declared incapacitated or with limited capacity by a court judgement. Such agreements may also provide for termination in the event the grantor’s or settlor’s full capacity is recovered.