Restrictions to competency and declaration of incompetence

In most cases, the appointment of a guardian is sufficient to safeguard the interests of a person in need of guardianship. The limitation of a person's competency will become topical chiefly when, due to an illness, the person actively seeks to act against their own interests in a manner that damages their financial standing, for example by donating their property or accumulating debt. In these situations, the appointment of a guardian may not alone be sufficient to safeguard the person’s interests. In this case, the District Court may order that:

• the person may perform certain legal acts, such as borrowing, only in with the assistance and consent of their guardian; or
• the person may only make decisions concerning their assigned property with the assistance and consent of their guardian.

The restrictions described above can effectively ensure, for example, that the client remains in ownership of property that is essential for the client's livelihood, such as a residence or a farm. If the restriction described above is not appropriate or sufficient for the protection of the person, the District Court may order that

• the person is not competent to perform certain legal acts; or
• the person does not have the legal right to make decisions concerning their property.

Generally, such a restriction will also terminate a person’s right to take out credit. Once the court has issued such a decision, only the guardian may perform the legal acts referred to in the decision and control the property specified in it on behalf of their client.

Limiting a person’s competence will become topical either at the time a guardian is appointed or separately when a guardian has been appointed for the person in question at an earlier time. The competence of a minor may be restricted after the minor has reached the age of 17. The restriction will begin after the person turns 18.                     

A person who has had limitations set for their competence always needs a guardian to act on their behalf in matters which the person cannot decide on independently due to the restriction. When deciding on a restriction to competence, the court will simultaneously appoint a guardian to the person, unless the person has already been appointed a guardian, whose duties include matters that the client cannot decide on independently due to the restriction.

The restriction to competence is valid until further notice or for the period specified in the court decision. The restriction or its period of validity may be amended if changing circumstances so require and must be terminated if it is no longer necessary.

Declaration of incompetency

As a final and extreme measure, a person may be declared incompetent, only in the event that limiting their competence is not sufficient to protect them. An incompetent person only has the right to perform legal acts that are of minor significance. Therefore, they can decide on such things as the use funds allocated to them by their guardian. However, an incompetent person cannot perform such acts as opening a telephone subscription or selling a car that they own. An appointed guardian will represent the person, who has been declared incompetent, in matters concerning financial affairs and property owned by the incompetent person when these are considered of more than minor importance.

However, an incompetent person can always decide on matters concerning his or her person if they understand the significance of the matter at hand. An incompetent person can, when they understand the significance of the matter, do such things as apply for a passport or submit a notification on their change of name. If an incompetent person does not understand the significance of a matter concerning them, the guardian may decide on the matter on their client’s behalf, if so decided on by the court. Even so, the guardian cannot ever decide matters on behalf of their client, in matters where the personal nature of the decision is emphasised. Thus, a guardian cannot, for example, enter into a marriage, acknowledge paternity, prepare a will, grant power of attorney or enter into a prenuptial agreement on behalf of their client.