guardianshipanalysis of law and policyand human rightsin georgiamental disability advocacy center2copyright © mental disability advocacy center, 2007all rights reserved.isbn: 978-963-87607-6-0 this report is available in english and georgian from mdac‘s website: www.mdac.info.mental disability advocacy center (mdac)rákóczi út 27/b 1088 budapest hungarytelephone: +36 1 413 27 30 fax: +36 1 413 27 39 email: mdac@mdac.info website: www.mdac.infothe research and publication of this report was made possible through the generous financial contributions ofthe sigrid rausing trust andin-kind contributionsfrom the council of europethe opinions expressed in this document are the opinions of the authors and may not reflect the opinions of the donors. responsibility for the information contained therein lies solely with mdac. the donors take no responsibility for the content and for any use that may be made of the information contained therein.human rights and guardianship in georgia3contentsexecutive summary5recommendations71. introduction101.1guardianship101.2researching guardianship121.3acknowledgements121.4method………………………………………………………………………………………131.5indicators for a human rights-based assessment of guardianship 142.guardianship law and policy in georgia162.1introduction162.2demographic and social landscape of georgia172.3georgia‘s legal system172.4guardianship law in georgia182.5georgia‘s guardianship process192.6human-rights based assessment of hungary‘s legislation22 2.6.1principles running throughout legal frameworks (indicator 1)22 2.6.2 procedural rights during guardianship proceedings (indicators 2-7)24 2.6.3 quality of evidence provided to the court in incapacity cases (indicators 8-12)32 2.6.4 rights of the adult after guardianship is established (indicators 13-17)38 2.6.5 obligations of the guardian after guardianship is established (indicators 18-25)43 2.6.6 necessity of guardianship and alternatives (indicators 26-29)53nneesa:glossary of terminology57b:summary table of the indicators59mental disability advocacy center4human rights and guardianship in georgia5xeutve mmarőis report is the űrst work of its kind to look in any depth into laws and practice relating to guardianship in georgia. it was possible to obtain a detailed understanding of legislation impacting on the guardianship process. however, the opportunity to gain a comprehensive understanding of actual practice was denied to mdac. őe reason was quite simple: access to vital sources of information was refused on the grounds of conűdentiality. consequently, this report oőers only an insight, albeit an important insight, into how the guardianship process fully works. while georgian legislation contains positive elements such as the law on social security of people with disabilities1 which provides people under guardianship with the right to work in any type of legal entity, and which prohibits the denial of employment to individuals under guardianship by any employer on the grounds of limited capacity, and the fact that, still much remains much to be done in this area to bring such law in line with current human rights standards. it is these standards, and the compliance of georgia with them, in legislation and in practice that form the focus of this report. őe legal and moral imperatives on georgia to amend its guardianship laws are demonstrated in this report, a report that is particularly timely in view of the recent adoption of the un convention on the rights of persons with disabilities, which georgia has signed.2 őis convention calls for a paradigm shift to more humane models where support and assistance are provided, but in which legal rights remain intact. őis report oőers an analysis of domestic legislation on guardianship, such legislation being viewed through the lens of human rights standards. őis legislation does not exist in a single codiűed form, but is scattered in a number of diőerent statutes and regulations. őe report examines whether adequate safeguards are provided in these laws, safeguards required to ensure a legal system that fully respects international human rights standards.őe outcome of this examination indicates that although the georgian constitution provides for respect for the human rights of people in general, these principles are rarely mentioned, let alone applied, with respect to people with psycho-social (mental health) or intellectual disabilities, and are little understood by professionals involved in the guardianship process. further, a series of legislative weaknesses have resulted in a number of deűciencies throughout the law. őese weaknesses are reěected in the practice of the process itself. indeed, the main űndings of the report reveal that georgia is failing in its obligation to protect the rights of people under guardianship, indicating that reforms are required urgently. őe most important of these űndings are: chapterv,art. conventionontherightsofpersonswithdisabilities,adoptedbytheungeneralassemblyondecember2006,refa/6/611art. 12.mental disability advocacy center6 őere are an estimated 3,000 adults who are deprived of legal capacity in georgia. all adults under guardianship are under plenary (all encompassing) guardianship. őese people are subject to signiűcant, arbitrary and automatic deprivations of their human rights. őese include a deprivation of their right to property, to family life, to marry, to vote, and to access courts. even if not speciűcally deprived of certain rights, a lack of procedural capacity ensures their inability to enforce them.guardianship is georgia‘s only legal response to people who require assistance to make decisions. őere are no alternatives available, such as supported and assisted decision making (where someone provides help in a structured way), advance directives (where an adult speciűes his or her wishes in the event of future functional incapacity) or powers of attorney (where an adult speciűes a person to take decisions in the event of future functional incapacity). adults subject to the guardianship process are provided with insuůcient access to adequate advice and representation to assist them through it. professionals involved in the guardianship process have little understanding of its human rights implications. őere are no alternatives to guardianship (for example, advance directives, sup-ported decision-making) for people with disabilities who need support in making certain decisions. based on its űndings, mdac urges the georgian government to reform all its laws that impact upon guardianship. őis report sets out a series of principled recommendations designed to improve guardianship law and practice and thus better respect the human rights of people with disabilities in georgia. mdac speciűcally urges the government to adopt and implement a national disability programme, and encourages the government to carry out its reform process in a way that actively involves and respects people with psycho-social disabilities (mental health problems) and intellectual disabilities, as well as their local and national organisations. human rights and guardianship in georgia7remmendaons őis report suggests that georgian guardianship law and practice fails to meet a number of the basic requirements of the international law of human rights. őe clear implication of this failure is that the lives of over 3,000 people currently under guardianship in georgia could be signiűcantly improved. őis will only happen if the government commits to further reform the legislative landscape and support those involved in implementing those reforms. with this in mind, mdac makes below a number of recommendations to the georgian government, which if followed would bring the law and practice in line with basic international standards. őe indicators referred to (and shown in brackets) below, are 9 basic guarantees required for a human rights compliant guardianship system. őey are given here to direct the reader to their more detailed analysis in the main sections of the report. mdac recommends the following: 1. provide alternatives to guardianship: őe georgian government should require use of least restrictive alternatives that promote the independence as well as protect the adult by:creating supported decision-making services. such services should be based on the following basic principles:őe adult retains full legal capacity whilst receiving services from a support person/network. a support person/network should not be appointed without the adult‘s consent. őere must be a relation of trust between the adult and the supporting person/network. a court should therefore not create such relationship, only recognise its existence. őe support person/network should not act on behalf of the adult unless speciűcally instructed, but merely provide the adult with support and assistance in making and communicating decisions. őere must be safeguards in place to protect the adult against abuse and exploitation. providing the right to create legally-binding advance directives (where an adult speciűes his or her wishes in the event of future functional incapacity) and powers of attorney (where an adult speciűes a person to take decisions in the event of future functional incapacity) (indicator 6).abolishing plenary guardianship (indicators 0 and 7).requiring that that guardianship is used only as a last resort (indicator 6).2. maximise autonomy: őe georgian government should ensure that adults subject to guardianship retain the right to make decisions in all areas of life in which they have functional capacity by: –––––mental disability advocacy center8removing the automatic ban on people under guardianship from exercising fundamental rights as the right to property, the right to marry, and the right to vote (indicators 3, 4, 6).requiring guardians to seek the least restrictive living arrangements for adults (indicator 21).3. improve procedures: őe georgian government should provide suůcient guar-antees to ensure the right of adults to meaningful participation throughout the guardianship process from the beginning of the process and for as long as the adult is under guardianship by:ensuring state-funded legal representation during all guardianship procedures, including appeals. law should provide for a regular legal representation in guardianship cases, of a minimum standard that is provided in other areas of law (such as criminal law and mental health law) (indicator 4).introducing training to lawyers on the practicalities of the guardianship process and oőering specialist training on how to represent clients whose functional capacity may be diminished (indicator 4).requiring guardians to regularly visit all adults for whom they are guardian, and to discuss all relevant issues with them. in the event of the adult not being able to express his or her wishes the guardian should be obliged to make decisions, and record such decisions, following the adult‘s previously known wishes and in line with the adult‘s known belief system and life narrative (indicator 3). removing the loopholes in the law allowing the option of detaining adults during the process for determining incapacity (indicator 5). 4.prevent abuse: őe georgian government should reduce the potential for abuse of the guardianship relationship by:clearly prohibiting people who have coněicts with the interests of the subject adult from serving as guardian (indicator 11). establishing objective criteria for conducting incapacity assessments, made by a multi-disciplinary team (not just a psychiatrist), and establishing clear grounds for limiting an adult‘s legal capacity (indicators 7 and 8). viewing guardianship as a temporary measure by ensuring that there is compulsory review of guardianship, and apply this to retrospective reviews (indicator 8). establishing a regularly updated database of all guardians. providing training to guardians, evaluating such training, and requiring continuous professional development of guardians. ensuring that adults under guardianship retain full legal capacity in any dealings with guardianship oůces of local authorities (eg. complaining about the guardian), and enabling adults under guardianship to obtain legal assistance to judicially review decisions by the guardianship authority which are unlawful or unreasonable.obliging guardianship oůces of local authorities to establish an eőective and accessible complaints system which adults under guardianship can directly human rights and guardianship in georgia9access; and obliging such guardianship oůces to provide information in an understandable format to all adults under guardianship (indicator 5).mdac believes that the implementation of these recommendations would signiű-cantly improve the quality of the georgian guardianship system by strengthening the protection of the human rights and interests of adults subject to guardianship. mental disability advocacy center101. inton1.1 guardianshipőis report is about guardianship of adults and does not deal with legal arrangements for children. mdac deűnes ‘guardianship‘ as a legal relationship established by a court process between an adult who is deemed to lack the requisite legal capacity to make personal decisions and the person appointed to make decisions on that adult‘s behalf.3 őe legal mechanism of guardianship exists in some form in almost every jurisdiction in the world. it is widely accepted as a means of protecting individuals who are deemed incapable of managing their personal aőairs as a result of a mental health problem (psycho-social disability), intellectual disability, degenerative disease or profound physical or sensory disability.guardianship is usually established through court proceedings, or a combination of court and administrative processes, during which adults are found to either partially or completely lack capacity to make decisions on their own behalf. őe outcome of such űndings could be that an adult is ‘legally incapacitated‘.4 őe court (or an administrative authority) then appoints a guardian to act on that adult‘s behalf. őe guardian‘s speciűc authority is deűned either by law or by court order. generally, guardians have both decision-making authority over the adult and an obligation to protect the adult‘s welfare. őe eőectiveness of guardianship as an institution heavily depends on certain personal qualities of each guardian, such as their competence, diligence and conscientiousness.guardianship has a profound eőect on the lives of those placed under its protective status. mdac research carried out in several countries has revealed that in many cases adults who are placed under guardianship lose their right to make even the most basic decisions as well as the right to exercise other fundamental human rights. abuse and neglect of an adult can result from a guardian failing to carry out the obligation to protect or from making decisions that are contrary to the desires and/or interests of that adult. to be eőective therefore, guardianship systems must oversee the actions of guardians and have an eůcient accountability system. theenglishlanguageterminologyusedthroughoutthisreportwasarrivedataftermuchdebate.presumably,therewillbe,oralreadyaresimilardebatesinotherlanguages.tohelpthereaderunderstandtheterminologyinthesereports,briefglossaryoftermscanbefoundinannexa.7kurxjkrxwwklvuhsruw0’$&xvhvwkhwhupµohjdofdsdflw¶dvgh¿qhglqwkh*orvvdudws’liihuhqwmxulvglfwlrqvxvhgliihuhqwwhuplqrorjwrgh¿qhwkhohjdolqdelolwwractonone‘sownbehalf,suchas,forinstance,‘incapable‘or‘incompetent‘.somelawssurylghiru¿qglqjrisduwldoruolplwhgohjdofdsdflwhuman rights and guardianship in georgia11as the global disability rights movement gains momentum, the guardianship model, as a means of providing protection and assistance to people with mental disabilities, is coming under increased criticism. őe principle criticism is its failure to provide adequate due process protections in establishing and administering guardianship and ensuring the right of self-determination.5 in a small number of jurisdictions, such as in canada and the uk, guardianship laws have been reformed, and alternative means of providing protection and assistance have emerged. possibly the most notable of these s supported decision-making.6 as a result, legislators and courts in these countries see the guardianship model as a last resort that is to be used only after all other less restrictive measures of support and protection have been exhausted.guardianship, rather belatedly, has been formally recognised in international human rights law and as a pressing issue internationally. in the newly adopted united nations convention on the rights of persons with disabilities (disability convention), legal capacity, a concept integral to guardianship, is speciűcally dealt with in article 12 which states: equal recognition before the lawstates parties reaůrm that persons with disabilities have the right to recognition everywhere as persons before the law. states parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3.states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.4.states parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and eőective safeguards to prevent abuse in accordance with international human rights law. such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of coněict of interest and undue iněuence, are proportional and tailored to the person‘s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. őe safeguards shall be proportional to the degree to which such measures aőect the person‘s rights and interests.5.subject to the provisions of this article, states parties shall take all appropriate and eőective measures to ensure the equal right of persons with disabilities to own or canadianassociationforcommunityliving(cacl)report.taskforceonalternativestoguardianship,august 1992,availableat:http://www.worldenable.net/rights/adhocguardianship.htm.6hhwkh*orvvdudwsirugh¿qlwlrqrivxssruwhgghflvlrqpdnlqjmental disability advocacy centerinherit property, to control their own űnancial aőairs and to have equal access to bank loans, mortgages and other forms of űnancial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. őese provisions directly implicate guardianship. further they add credence to mdac‘s call for an immediate paradigm shift away from the arbitrary removal of the human rights of those under guardianship, towards the adoption of national policies and laws which will make the provisions of the disability convention, and those in article 12 in particular, a reality. it is mdac‘s wish and intention that this report will iněuence both the direction and speed of this paradigm shift. 1.2 researching guardianship in many of the countries where mdac works, guardianship laws have remained relatively unchanged for decades. however, they are likely to undergo substantial reform as countries continue to bring their legislation in conformity with international human rights standards. to highlight guardianship as an area in need of urgent reform, mdac initiated its guardianship project to identify the strengths and weaknesses of existing legislative regimes. őe project has two stages. őe űrst is an examination of speciűc legislative regimes that impact on guardianship. as legislation and reality frequently diverge, the second stage examines this reality, by reviewing the implementation, or otherwise, of this legislation and how it eőects individuals facing guardianship proceedings and life thereafter. mdac started stage one of its guardianship research in late 004 by examining the legislative structure of guardianship systems in a number of countries. őe focus was initially on four: bulgaria, hungary, serbia and russia. in 006, mdac began research in an additional four countries: croatia, the czech republic, georgia and kyrgyzstan. a separate initial report has been prepared for each country researched. őe speciűc aim of stage one research is to examine the degree of compliance of national guardianship legislation in these countries with international human rights law, standards and best practices, in order to highlight any areas in need of reform. as with many research projects that serve as the űrst exploration of uncharted territory, the resultant reports may raise more questions than they answer. őis is particularly true as the guardianship project is not a statistical survey, but, rather, a comparative legal analysis. őe initial reports, of which this is one, present legislative analysis alone. őey are to be followed by comprehensive reports incorporating the research űndings of stage two, the manner and degree to which this existing legislation is implemented in practice. human rights and guardianship in georgia1.3 acknowledgementsresearch was carried out by lawyers from each of the target countries. őe researchers conducted all of the in-country research, wrote the űrst drafts of the country reports and participated in the editorial process. őe researchers were slavka kukova (bulgaria), al-exandra korac and petar sardeliž (croatia), zuzana benešová and david kosar (czech republic), nina dadalauri (georgia), dániel kaderják (hungary), meder dastanbekov (kyrgyzstan), anna smorgunova (russia), and vidan hadůi-vidanoviž (serbia).beginning in february 003, long before the guardianship project űeld research began, mdac‘s oliver lewis gathered a select group of individuals to form the guardianship advisory board. őis group has been involved in an active capacity in the conception, design and implementation of both stages of the project, its members generously contributing their time and expertise. őe guardianship advisory board consists of űve internationally recognised experts in the űeld of mental health, guardianship and human rights law:dr. robert m. gordon, director and professor, school of criminology, simon fraser university, vancouver, canada;dr. georg høyer, professor of community medicine, university of tromsø, norway;dr. krassimir kanev, chairman, bulgarian helsinki committee, soűa, bulgaria;mr. mark kelly, director, irish council for civil liberties, dublin, ireland; anddr. jill peay, professor of law, london school of economics, london, uk.mdac would like to extend its warmest gratitude to the guardianship advisory board for the individual and collective contributions they have made to this project. any errors remain solely those of mdac. mdac‘s former research and development director marit rasmussen developed and managed this project for over two years. interns priscilla adams, jill diamond, jill roche and nicholas tsang helped with background research and istván fenyvesi designed and laid out the reports. őe georgia report was drafted by nina dadalauri. rusudan nanava and grigol giorgadze provided extensive comments. istván fenyvesi, sarah green and oliver lewis produced the űnal version. 1.4 methodőis report is a de jure study of the legislative texts, rather than how they are applied. őe study examines the types of protective arrangements available under national laws as well as any other relevant national legislation by:mental disability advocacy centerstudying the legal procedures for obtaining or terminating guardianship and the rights of the parties to such procedures.examining the evidentiary standards in guardianship proceedings.documenting the rights of the person alleged to lack capacity throughout the guardianship process.assessing which rights are taken away after a űnding of incapacity has been made. analysing the power and authority of guardians, their accountability and how they are monitored, as well as the processes, if any, for bringing complaints against guardians.1.5 indicators for a human rights-based assessment of guardianship őroughout the project, mdac has used 9 indicators against which legislation is analysed.7 őese indicators come from the key european document concerning guardianship and supported decision-making, namely the council of europe com-mittee of ministers‘ recommendation no. r(99)4 ‘principles concerning the legal protection of incapable adults.‘ further indicators were derived from the recom-mendation‘s explanatory memorandum,8 as well as from a review of guardianship legislation in jurisdictions in europe, the united states and canada. mdac has formulated its indicators bearing in mind that, with the exception of kyrgyzstan, all countries under review have ratiűed the european convention on human rights and, as member states of the council of europe, there is an expectation that they will comply with its ‘soft law‘,9 such as recommendation no. r(99)4.mdac‘s indicators capture basic safeguards necessary for a person-centred guardian-ship system that respects human rights. őe intent was to keep the indicators relatively simple and concise even where the underlying issues are anything but straightforward.őe indicators are not exhaustive, but do highlight critical issues faced by adults in guardianship systems. omission of a particular point or issue from an indicator does 6hh$qqh[iruwdeohvxppduridoo lqglfdwruv seethefulltextofthememorandumathttps://wcd.coe.int/viewdoc.jsp?id=3. ‘soft%odfn¶vcommitmenthowever,human rights and guardianship in georgianot mean that the issue is not important or does not pose a problem in the legislative framework of the country in question. by standardising the investigation and analysis of guardianship systems, mdac aims to create a means for people to compare and contrast guardianship systems in diőerent countries.mental disability advocacy center. guardianship llicy n georgia.1introduction georgia (called sakartvelo in georgian) is a country in the caucasian region of eurasia, and is bordered on the west by the black sea, on the north by russia, on the south by turkey and armenia, and on the west by azerbaijan. it measures , 700 km, and has a population, according to the 006 census, of 4,403,000 people. georgia is a former republic of the soviet union, and was one of the űfteen soviet republics for almost 70 years (from 21 till 99). following the collapse of the soviet regime, in 99 it regained its independence, and between 990 and 995 it was oůcially called the republic of georgia. however, it is no longer a republic but a sovereign state with a transition economy. since the breakdown of the soviet regime, georgia has undergone a turbulent period of transition. georgia‘s state religion is christian orthodox.economic stagnation and an absence of national production has led to the impover-ishment of georgia itself and poverty for much of its population. őe impact has been felt particularly harshly by the healthcare system. state-run hospitals, for instance, suőer from a chronic lack of resources and the quality of the treatment provided is, on occasions, questionable. őere are few state programmes aimed at facilitating the treatment, rehabilitation, and integration into society of those with disabilities, which includes those with mental and psycho-social disabilities. like other vulnerable groups in georgian society they face inadequate support from the state. őe situation in georgia has noticeably changed since the fraudulent parliamentary elections under the presidency of edward shevardnadze in november 003 were challenged by his opposition leaders. őe latter managed to get election results annulled by the supreme court of georgia and meanwhile, through large demonstrations lasting for weeks, managed to make the then-incumbent president step down. őis event, known as the ‘rose revolution‘ has been characterized as a breakthrough towards democracy in reversed authoritarian post-soviet block by international community. although the social security system in georgia has recently begun to be rebuilt and reorganised, the new state policy on vulnerable groups has excluded many groups of people that previously were considered to be vulnerable and who used to receive monthly beneűts. őese beneűts were small but still vital for their survival. őe relevant legislation and the situation of people with mental and psycho-social disabilities in georgia have not undergone signiűcant changes since 003. disability issues remain inadequately addressed in both policy proposals and legislation. human rights and guardianship in georgia2 demographic and ocial landscape of georgia őe break-down of the soviet regime, followed by the civil war (99993), and a war in abkhazia (993-994), contributed to a severe economic crisis in georgia, compounded by a large wave of emigration. combined with an increasing mortality rate, these events have led to a dramatic population decline. of the current population of 4,40,3 people (not including uncontrollable territories of south ossetia and abkhazia), 84,000 live in urban areas.11 őere has been a steady increase in the number of people considered disabled12 in georgia since 003, according to the data provided by its department of statistics. in 003 the total number of people with disabilities was estimated at 7,689. in 004 this űgure rose to 0,98. 005 saw further increases when the űgures reached 4,47őere has been a corresponding increase in the estimates of people with disabilities considered to be incapable: 5,789 in 003, 8,566 in 004 and 3,05 in 005. people with mental disabilities are, in most cases, placed in one of the seven psychiatric hospitals in georgia. additionally, there are two institutions set up for adults with intellectual disabilities: the zurabishvili psychiatric hospital in tbilisi, and the other, called the ‘house for people with intellectual and physical disabilities‘ in western georgia, in the village of dzevri. 3 georgia‘s legal ystem georgia is a unitary, presidential republic. politically it is a democratic republic with the government made up of the president (currently micheil saakashvli), a cabinet of ministers that includes the prime-minister; the parliament of georgia, and independent courts (supreme court, constitutional court, general courts). georgia belongs to the countries of romano-germanic law in the areas of civil, crimi-nal and public law. őere is an increasing tendency however towards the introduction of anglo-saxon laws, examples of which include the laws on procedural transactions and on the freedom of speech and expression.as a party to the eu initiative, the european neighbourhood policy, there are expec-tations that all of georgia‘s legislation should be brought in line with the eu laws. georgia has ratiűed the european convention on human rights and fundamental freedoms, and its constitution contains a charter of rights, the nd charter in the constitution. southossetia‘snameingeorgianissamachablo.11 dataobtainedfromthedepartmentofstatisticsofgeorgia,2006. thetermusedonincapable individuals inthesourceprovidedbythedepartmentofstatisticsis‘invalids‘. 13 dataobtainedfromthedepartmentofstatisticsofgeorgia,2006.mental disability advocacy centerparliament adopted the constitution of georgia, the supreme law of the country, by a qualiűed majority of votes on 4 august 995. laws in georgia are adopted by the parliament, while regulations and decrees – by representatives of the executive branch. őere are individual legal acts that are adopted following the rule stipulated in the law on normative acts. őe president of georgia has the right to issue decrees which have the power of law, but only in cases where an emergency is declared.all legal acts are adopted in accordance with the constitution. speciűc international public and private law has been adopted in georgia, such law taking precedence over domestic legislation although not over the constitution which retains its supremacy. monitoring of adherence to such law is purportedly regular. of particular note is its ratiűcation of the european convention on human rights, which has given rise to a number of individual petitions before the european court of human rights. őree procedural codes have been adopted relatively recently: the civil code (997), the administrative procedure code (999) and the criminal procedure code which came into force in 000. of particular relevance to this report is the civil code which regulates property, family and personal relations. 4 guardianship law in georgia őis section oőers a very brief overview of guardianship law in georgia, and is followed by a summary of the guardianship/incapacity process. speciűc guardianship law in georgia is found principally in the 997 civil code. its provisions stipulate the concept of guardianship, the process and procedure of its appointment, the responsible body who may appoint a guardian; individuals who may not be appointed as a guardian; the rights and obligations of the guardians; grounds for their dismissal and where and by whom the guardian‘s action/decision can be challenged. georgia does not have one comprehensive law on people with mental and psycho-social disabilities. because the provisions within the 997 civil code do not cover all aspects of guardianship of people with psycho-social and intellectual disabilities, additional laws from other sources have to be applied when needed. őese include, principally, the following: georgia‘s law on social security of disabled persons (995); georgia‘s law on medical examination (00); and the new law on psychiatric care (996). őe term ‘mentally disabled persons‘ was introduced in the law on social security which stated that the new term had to replace the word ‘invalid‘. nevertheless, georgian legislation is still littered with terms such as ‘mentally retarded‘. őe law on social security of disabled persons purportedly provides people with disabilities the right to professional, social, and medical rehabilitation, the opportunity human rights and guardianship in georgiato fully integrate into society, and to use their creative and work capacity. őis law also envisages individual rehabilitation programmes for people with disabilities including people with mental disabilities. georgia‘s law on medical and social care deűnes the concept and the purposes of incapacity assessment that can become the basis for an adult‘s deprivation of legal capacity, which should be carried out before the appointment of a guardian.őe law on psychiatric care asserts that each patient is guaranteed humane and respectful treatment. nonetheless, it also provides for two forms of involuntary in-stitutionalization: ‘emergency hospitalization‘ and ‘compulsory treatment‘ which are ambiguously phrased allowing for such institutionalisation to be misused. equally noteworthy is its failure to make provision for a right to legal representation prior to or upon involuntarily hospitalization.although brief, this overview contains suůcient information to make it clear that the provisions for guardianship in georgian legislation are such that they require urgent revision. 5 georgia‘s guardianship rocess georgia‘s guardianship law provides only for plenary (all encompassing) guardianship. once deprived of legal capacity there is no other less restrictive protective arrangement provided by the law. before an adult can be deprived of legal capacity, a functional capacity examination must be carried out by an authorized incapacity assessment board. each board is made up of at least three certiűed professional doctor-experts and a psychologist. however, the exact composition of the board may vary depending on the circumstances of an individual case. prior to the board‘s capacity evaluation, speciűc necessary medical checks and rehabilitation procedures should be carried out. each evaluation may be sought in writing by the administration of the hospital where the adult in question is hospitalized, or by a court. őe board is authorized to arrange the requisite incapacity assessment to take place in a medical or rehabilitation institution and to send the adult to that institution. it is also authorized to request and receive all necessary information and documentation from any institution regardless of its organizational status. őe purported purpose is to ensure an incapacity assessment based upon recent and precise information. 14 georgianlawonmedicalexamination(200),art.6, 815 ibidart. 52.mental disability advocacy centercapacity is measured by an evaluation of an adult‘s social, psychological and physi-ological condition, whether it is temporary or permanent, and should include, for instance, an assessment of ability, or lack of, to move, to have a sense of direction, to communicate, have self-control, and to be able to look after him/herself. whilst it is open to the board to űnd one of four levels of incapacity: slight, moderate, signiűcant or high, it is only if moderate, signiűcant or high levels of incapacity are found that deprivation of legal capacity can follow. őe ministry of social security and healthcare of georgia provides instructions on how an incapacity assessment of an adult‘s functional capacity should be carried out. őe incapacity assessment must be followed by a written report, the format of which is, prescribed by the ministry of labour, healthcare and social security of georgia. a copy should be given to the adult in question or his/her legal representative. a brief conclusion of the capacity evaluation report is sent to the ‘appropriate institution‘. őe conclusion of the incapacity assessment may be challenged either by the adult in question, his/her representative, or the institution that provides social security to the individual by addressing the board or any governmental body that has a supervisory status within one month of the issuing of the conclusion.21 of particular concern in this process is the possibility of an incapacity assessment taking place without an adult actually being examined. whereas provision is made for adults to undergo a medical examination at their place of residence or institution, if unable to attend the board itself22 in the case of ‘long distance‘ and/or obstacles for the adult in getting to the place where the incapacity assessment is arranged, the medical ‘examination‘ can still take place without the actual presence of the adult in question, although the adult or his legal representative have to give their consent to this. at the same time, legislation oőers no explanation or guidance as to what can be considered ‘long distance‘ or an ‘obstacle in reaching the place‘. following the determination of an adult‘s degree of incapacity, the court is in a posi-tion to deprive that adult of legal capacity. at the same time, when a person in ques-tion is involuntarily hospitalised (this can have two bases: ‘emergency hospitalization‘ or ‘compulsory treatment‘), the court hearing on the issue of the person‘s deprivation of his or her legal capacity takes place without the presence of the person in question. 16 ibid,art. 4 and 517 georgianlawonmedicalexamination(200).18 ibidchapterii,art. 10. ibidart.20 lawonmedicalexpertise,art. 55*hrujldq/dzrq0hglfdo([dplqdwlrqduwfodxvh22 ibidclause 51 ibidclause 51.2. ibidart. 51human rights and guardianship in georgiaadults undergoing a capacity deprivation procedure do have the right to legal repre-sentation, but when involuntarily detained for compulsory treatment, their rights are limited in deciding whether they would continue or quit the treatment. additionally, such adults do not have the right to have legal representation during court hearings. it is mainly those lawyers who represent the guardians‘ interests who take part in court hearings. after the capacity deprivation procedure is over it is the guardianship agency, which has to be based in the same administrative territory where the adult in question resides, that appoints a guardian to the legally incapacitated person. őe appointment of the guardian can be made by the guardianship agency in the following situations: a) when a written request on appointment of the guardian is submitted to the guardianship agency or b) when the oůcial court ruling based on an incapacity assessment is sent to the guardianship agency, which has an obligation to appoint a guardian within a period of one month. provision is made for the consent of an adult to be obtained prior to the appointment of a guardian, although only when it is possible to do so. consequently, consent is not mandatory in the process of guardian appointment. however, legislation states that the relationship of the person to be appointed as guardian with the incapacitated adult as well as the person‘s qualities are to be taken into account when deciding on his/her appointment. guardians are granted full right to manage the űnances and property of the legally incapacitated adult, to take care of their health, and to ensure that they are provided with all necessary means and conditions for proper living. őey have, in addition, the right to express the will and interests of the adult in question and can therefore represent legally incapacitated individuals before a third party such as a court. guardians are not obliged to discuss their decisions with the adults in question. guardians‘ activities are supervised by the guardianship agency and the latter may dismiss the guardian based on a request by the incapacitated person. őe appointment of another guardian shall be in consultation with the incapacitated adult. őe decisions of the guardians are not viewed or examined by an objective body that would check whether the rights of the incapacitated person have been violated, or whether any international human standards have been violated. often abuse by guardians of their power, which in most cases has to do with selling the property of the incapacitated person and using űnancial resources for their own needs and beneűts, is ‘discovered‘ quite late either by a third party or the incapaci-tated person after she/he regains legal capacity, when there is very little chance to remedy the situation. georgianguardianshiplaw, 19926 ibid.27 ibid.mental disability advocacy center22as to remedies, provision is made for all actions of the guardian to be challenged in court. 6 human-rights based assessment of georgia‘s legislationas noted, mdac has developed a series of 9 indicators to assess guardianship legislation. őese indicators are derived from international human rights law and standards, such as the european convention on human rights and fundamental freedoms (echr) and the council of europe committee of ministers recom-mendation no. r(99)4 on adults and legal capacity. where an issue or assertion has not been clearly established in international law or standards, best practice examples are provided from national laws in various countries. őe űrst indicator highlights principles that run throughout the legal framework, and which also indicate general societal attitudes towards people with mental disabilities. őe remaining indicators, like guardianship systems themselves, are divided into three major sets. őe űrst set addresses the rights of the adult prior to placement under guardianship. őe second set addresses the rights of the adult after deprivation of legal capacity as well as the corresponding responsibilities and accountability of the guardian. őe third set ex-plores less restrictive alternatives as well as mechanisms for review and termination of guardianship once imposed. őe remaining structure of the report is as follows. each indicator is detailed in full. őis is followed by a very brief ‘conclusion‘ as to georgia‘s compliance with it and then an ‘analysis‘ of that compliance. finally, examples of speciűc ‘human rights standards‘ relevant to the indicator are given. 2.6.1principles running throughout legal framework (indicator 1)indicator legislative purpose or preamble to the law encompasses respect for the human rights, dignity and fundamental freedom of people with mental disabilities. conclusion: őe constitution and other laws provide for the equal rights of people in general, but principles are rarely mentioned with respect to people with psycho-social or intellectual disabilities.analysis: őe constitution of georgia states that the human rights, dignity and fundamental freedoms of each individual living on the territory of georgia are acknowledged and protected by the state of georgia. however, the constitution does not say anything speciűcally about people with mental disabilities. őe law on social constitutionofgeorgia,ch. 1art. 7human rights and guardianship in georgia23care for the disabled and the 006 law on psychiatric care make a reference to the dignity of people with mental disabilities.őe law on social care for the disabled directly addresses the issues related to people with disabilities, introduces the term ‘disabled persons‘, and aims to ensure the realization of rights of people with disabilities equally to other individuals. further, it sets out the state policy on people with disabilities that stipulates the need to comply with international agreements which, along with the constitution of georgia and other legal acts, determines the legal framework for issues of speciűc relevance to them. additionally, it includes a speciűc non-discrimination clause:‘discrimination of disabled persons is forbidden and subject to punishment in accordance with the law‘.30 human rights standards: principle of recommendation no. r(99)4 provides that respect for the human rights and dignity of people with mental disabilities should permeate throughout the law:in relation to the protection of incapable adults the fundamental principle, underlying all the other principles, is respect for the dignity of each person as a human being. őe laws, procedures and practices relating to the protection of incapable adults shall be based on respect for their human rights and fundamental freedoms, taking into account any qualiűcations of those rights contained in the relevant international legal instruments. őis principle may be implemented in legislation by the inclusion of a preamble or purpose statement in the relevant statutes. such a proclamation on the recognition and importance of human rights principles and human dignity will guide the judiciary to consider these principles when drafting a decision. őe world health organization (who) also recommends this approach in order to ‘help […] courts and others to interpret legislative provisions whenever there is any ambiguity in the substantive provisions of the statute‘. őe who cites the preamble to the polish mental health protection act as embodying this principle. őis preamble states, ‘[a]cknowledging that mental health is a fundamental human value and acknowledging that the protection of the rights of people with mental disorders is an obligation of the state, 29 thetermonlycoversindividualswithlimitedabilitiesduetodesease,trauma,mentalorskvlfdoghihfw,vvxhvuhodwhgwrshrsohzlwkskvrvrfldoglvdelolwlhvduhfryhuhgewkhlawonpsychologicalcare. lawonsocialcareforthedisabled,art. 1(2).31 recommendationr(99)principle 1 worldhealthorganization,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 19.mental disability advocacy center24this act proclaims […]‘.33 a preamble such as this establishes the overriding values that should be applied to implementation of the law. 2.6.2 procedural rights during guardianship proceedings (indicators 2-7)őis group of indicators addresses the procedural rights of adults in guardianship proceedings. while national legislation may well provide for additional rights and protections, these indicators represent the minimal necessary standards for due process and fair proceedings. under european human rights law, ‘special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.‘34indicators 8 to 12 will address the quality of evidence that is provided to the court in incapacity cases, a critical stage in the guardianship process.indicator the legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it.conclusion: őe legislation clearly identiűes who may make an application for ap-pointment of a guardian. analysis: legislation35 asserts that guardians are appointed to people with mental disabilities who were recognized as such by the court. a guardian‘s appointment is partially regulated by provisions of georgian guardianship law. őe court that made the decision on an individual‘s legal capacity shall notify the local guardianship agency within three days of appointing a guardian to the adult.36 őe provisions for the foundation of guardianship appointment are deűned in the georgian law on medical examination. őe foundation for guardianship appointment is the lack of legal capacity. a guardian must be appointed to a person who is legally an adult for the purpose of protecting that person‘s personal and property rights and interests, in cases of inability to independently exercise and protect those rights. human rights standards: őis indicator has two principle focuses. őe űrst is on whether the legislation speciűcally deűnes which individuals may űle an application 33 mentalhealthprotectionact,m284 199poland,ascitedinwho,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 19.34 europeancourtofhumanrightsinthecaseofwinterwerp v. the netherlandsapplicationqrmxgjphqw2fwrehu $ (+55sdud35 guardianshiplaw,art. 16. civilcode,art. 10.human rights and guardianship in georgia25for the appointment of a guardian and the second on whether the statute includes a list, or examples, of the prima facie evidence necessary to demonstrate the need for such an application. with respect to the űrst focus, recommendation no. r(99)4 sets out in principle 11) that:‘őe list of those entitled to institute proceedings for the taking of measures for the protection of incapable adults should be suůciently wide to ensure that measures of protection can be considered in all cases where they are necessary. it may, in particular, be necessary to provide for proceedings to be initiated by a public oůcial or body, or by the court or other competent authority on its own motion.‘őe recommendation calls for ‘fair and eůcient procedures for the taking of measures for the protection of incapable adults‘.37 fairness in this context includes the provision of a law that clearly speciűes who can űle applications. őe second, that a guardianship application must have some merit on the face of it, is necessary in order to protect an adult against malicious accusations of the deprivation of functional capacity. in the case of h.f. v. slovakia, the european court of human rights (ecthr) examined the procedure that led h.f. to the deprivation of her legal capacity based on an application submitted by her ex-husband and substantiated by a psychiatric report that was, at the time of the hearing, over a year old. őe court found a violation of article 6() echr because, among other procedural defects, the slovak court failed to produce suůcient evidence in light of principle 12 of recom-mendation (99)4, which requires an ‘up-to-date report from at least one suitably qualiűed expert‘.38 when legislation prescribes the form of evidence necessary to be submitted with an application, incapacitations such as that suőered by the applicant in h.f. v. slovakia may be avoided at the outset. indicator 3an adult has a right to actual notice of, and to be present and heard at all proceedings related to the application for deprivation of his or her legal capacity and appointment of a guardian. conclusion: georgian legislation is silent on the issues of the right of an adult to be present and heard in the process of legal capacity deprivation. 37 recommendationno.r(99)principle 5).38 h.f. v. slovakiaapplicationno. 547/00,judgment 8 november200notethatthejudgmentisonlyavailableinfrench.foranenglishsummary,seepressrelease,europeancourtofhumanrightsregistrar,chamberjudgmentsconcerningfrance,malta,moldova,poland,slovakia,turkeyandukraine8 november200).availablethroughwww.cmiskp.echr.coe.int/echvisited 3july2006.mental disability advocacy center26analysis: őe presence of the adult is not speciűcally restricted by the law in the process of appointment of a guardian. however, the court proceedings on deprivation of the legal capacity of an individual may take place without the actual presence of the individual in question when that person is detained in a hospital. human rights standards: őe right to be present and heard during court proceedings is directly linked to the right to receive notice of the proceedings, as the right to be present and heard cannot occur without meaningful and actual notice. principle 11of recommendation no. r(99)4 provides that the adult must be informed of the proceedings, specifying, among others, that this must be done ‘in a language, or by other means, which he or she understands.‘39 őe explanatory memorandum to recommendation no. r(99)4 reiterates that this procedural safeguard is necessary, citing the requirements of article 6 of the echr.40 őe language used in the principle recognizes that for the individuals concerned, notice as prescribed by general civil procedure law may not convey the meaning or ramiűcations of the proceedings. őerefore, the standard to be applied is whether the law provides for actual notice. one solution to this is incorporated in the uniform guardianship and protective proceedings act that simply adds a provision requiring ‘notice under this act must be in plain language.‘with respect to the second element, recommendation no. r(99)4 simply provides that ‘the person concerned should have the right to be heard in person in any proceedings which could aőect his or her legal capacity‘. article 6 of the echr provides for fair trial rights in cases, including those where a person‘s civil rights and obligations are in question, including guardianship issues.43 notethatprinciple 11(2)alsoprovidesanexceptiontonoticewhensuch‘wouldbemanifestlywithoutmeaningtothepersonconcernedorwouldpresentseveredangertothehealthofthepersonconcerned.‘ councilofeurope,committeeofministers.explanatorymemorandumtorecommendationr(999)4 onprinciplesconcerningthelegalprotectionofincapableadults.adopted3 february 1999,para. 52.41 seepara. 113(c).theuniformguardianshipandprotectiveproceedingsact99ismodellegislationdraftedbythenationalconferenceofcommissionsonuniformstatelaws.themodellegislationwasalsoendorsedbytheamericanbarassociation.thepurposeofthisuniformactwastoensuredueprocessprotectionforpeoplewhohavebeendeprivedoflegalcapacityandtosubjectguardianstocourtjurisdictionthroughouttheus;consequently,itsdueprocessprovisionsmayalsoserveasmodelinotherjurisdictions.availableatwww.nccusl.org,visited 14 july2006. principle 1343 seewinterwerp v. the netherlandsapplicationno.73judgment4 october 19,(a/339)ehrr 387inwhichthecourtsaidthat‘[t]hecapacitytodealpersonallywithone‘spropertyinvolvestheexerciseofprivaterightsandhenceaffects‘civilrightsandobligations‘withinthemeaningofarticlepara. 1 […].divestingmr.winterwerpofthatcapacityamountedto‘determination‘ofsuchrightsandobligations.‘thisprinciplezdvpruhuhfhqwouhdi¿uphglqmatter v. slovakia,applicationno. 31534/96,judgment 5 july 1999,para. 51human rights and guardianship in georgia27indicator 4an adult has a right to free and effective legal representation throughout guardianship proceedings. conclusion: őere is no right to free legal representation in guardianship proceed-ings. analysis: law does not specify provide for – or prevent – legal representation. ac-cording to the civil procedure code, representatives of the guardianship authority should attend court sessions on legal capacity.44 however, these people are not there to represent the adult. human rights standards: council of europe recommendation no. r(004)highlights that ‘persons with mental disorder should be entitled to exercise all their civil and political rights‘.45 it is a well-established principle of international law, explicitly stated in article 4(3)(d) of the international covenant on civil and politi-cal rights (iccpr) that where liberty is in question, a person must have the right to free legal assistance and representation. őe un human rights committee, the monitoring body for the iccpr, has interpreted this obligation to additionally ap-ply to ‘procedures to determine [their] rights and obligations in a suit at law‘.46 as the requirements of article 4(3) of the iccpr are considered basic guarantees of a fair hearing,47 free and eőective representation should be interpreted as a requirement dur-ing all incapacitation proceedings. extension of this right to guardianship proceed-ings is also supported by recommendation no. r(99)4, which provides that ‘there should be adequate procedural safeguards to protect the human rights of the adult concerned and to prevent possible abuses‘.48 similarly, the echr has been interpreted to include fair trial rights during court procedures concerning legal capacity.49enforcing this requirement by providing eőective legal representation is especially crucial when the person is alleged to lack functional capacity to represent him or herself.50 deprivation of legal capacity may, as already noted, result in lifelong placement under guardianship and a loss of the right to exercise fundamental rights (such as the right to choose residence, to manage űnances, to marry, to vote). őe un general assembly recognized the importance of this obligation in the 99 principles 44 civilprocedurecode,art. 3(2).45 recommendationno.r(200concerningtheprotectionofthehumanrightsanddignityofpersonswithmentaldisorder,adopted22september200art. 4 seeunhumanrightscommittee,generalcomment 13equalitybeforethecourtsandtherighttofairandpublichearingbyanindependentcourtestablishedbylaw,dated 13 april 184para.2.47 humanrightscommittee,generalcomment 13op.cit,para. 548 principle 7 matter v. slovakiaop.cit,para. 51 seeforexample,theeuropeancourtofhumanrightscasemegyeri v. germanyapplicationno. 13770/88judgment 1may 1992,992) 15 ehrr 584para.mental disability advocacy center28for the protection of persons with mental illness and the improvement of mental health care (mental illness principles), which state that, [t]he person whose capacity is at issue shall be entitled to be represented by a counsel. if the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have suůcient means to pay for it. indicator 5 an adult may not be detained in order to be subjected to an evaluation of his or her legal capacity. conclusion: georgian law allows for the detention of a person solely to carry out an incapacity assessment. analysis: law states that incapacity assessments may take place on a voluntary or involuntary basis, thereby allowing for the possibility of an adult being detained in order to carry out an incapacity assessment. human rights standards: őe mental illness principles state that ‘[n]o person shall be compelled to undergo incapacity assessment with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law‘.53 similarly, the ecthr has examined the issue of detention in relation to forced psychiatric examinations under article 5 of the echr and the right to liberty. in nowicka v. poland, it held that detaining an individual in order to fulűl an obligation under law, such as a court ordered psychiatric examination, is, on its face, a permissible action. however, it also found that detaining an individual prior to such an examination and continued detention after the obligation ceases to exist, fails to balance the state‘s interest in the examination and the individual‘s right to liberty and constitutes a violation of article 5.54 in other circumstances, the ecthr has held that forced psychiatric examinations violate article 6 (right to fair trial)55 and article 8 (right to respect for private and family life)56 of the echr. 51 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 1(6). civilprocedurecode,art. 352(2).53 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 554 nowicka v. poland, seebock v. germany 11118 seeworwa v. polandholdingthatmultipleexaminationsinshortperiodoftimeinfrqqhfwlrqzlwkvlplodufulplqdofdvhvfrqvwlwxwhgdqxqmxvwl¿hglqwhuihuhqfhzlwkwkhapplicant‘sprivatelife.applicationno.2662/9judgment7 november200human rights and guardianship in georgia29consequently, the mere possibility that a person may lack capacity, either partially or entirely is not a suůcient basis, by itself, to involuntarily detain a person. indicator 6an adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses). conclusion: georgian legislation does not deprive adults of the right and opportunity to present their own evidence (including witnesses), and to challenge the opposing evidence (witnesses) in court. analysis: however, the case is diőerent when the adult is mentally incapable, when their rights are exercised through their guardian. őere is no possibility for an adult to present his or her own evidence (by themselves, but they may do it through their representatives) in a court hearing when they are involuntarily detained.57 when not detained, which is the norm, the adult or his/her legal representative may challenge the opposing evidence. human rights standards: recommendation no. r(99)4 states that ‘[t]here should be fair and eůcient procedures for the taking of measures for the protection of incapable adults‘.58 őis principle echoes article 6() of the echr which guarantees a fair hearing in all cases involving civil rights and obligations.59 őe ability for the parties in the case to challenge evidence with counter evidence and the right to present evidence, including calling witnesses, is an aspect of a fair hearing. őis safeguard is listed in article 4(3) of the iccpr, interpreted by the un human rights committee to include the minimum guarantees of a fair hearing.60 in proceedings concerning the deprivation of legal capacity and guardianship, giving the adult the opportunity to challenge evidence and witnesses is especially important. it is principally through such challenges that the court may become aware of possible ulterior motives behind the application, such as, for instance, access to the adult‘s űnancial resources. further, the adult, at this stage, may also be able to point out procedural irregularities, such as medical reports that are out or date or incomplete, as well as evidence demonstrating the adult‘s functional abilities.57 lawonpsychiatriccare.58 principle 7). forapplicationofarticle6(toguardianshipproceedings,seewinterwerp v. the netherlands,applicationno.73judgment4 october 19.60 internationalcovenantoncivilandpoliticalrights,article 14)(e).seeunhuman5ljkwv&rpplwwhh*hqhudo&rpphqwsduduhjduglqj$uwlfoh dvgh¿qlqjminimumguarantees.mental disability advocacy centerindicator 7no adult is deprived of legal capacity without being the subject of an incapacity assessment, conducted by a qualified professional and based upon recent, objective information, including an in-person evaluation. conclusion: adults in georgia cannot be deprived of legal capacity without an inca-pacity assessment conducted by a qualiűed professional and based upon recent, objec-tive information. analysis: őe purpose of a capacity evaluation of an adult is, as its name suggests, to determine the degree of that person‘s capacity and limitations. it is a complex process that should be supported by social, professional, psychological and clinical-functional data. őe capacity evaluation of an adult is carried out by the incapacity assessment board, comprised of at least three certiűed professional medical experts and a psychologist. however, the composition can vary depending on the nature of individual cases and on the type of the incapacity assessment required. prior to the capacity evaluation by the board, all necessary medical assessments and rehabilitation procedures for the adult – after all rehabilitation programs have been exhausted – should be carried out. őe procedures provided by the ministry of social security and healthcare of georgia give instructions as to the appropriate conduct of the evaluation.63 őe board‘s űndings and conclusion formally determine which of the four permitted degrees of capacity limitation is relevant to the adult, whether this is considered to be temporary or permanent, and which may qualify the adult for social security. őe four speciűc categories are: slight, moderate, signiűcant and high levels of incapacity. in order to be declared by the board as having limited functional capacity, an individual must be held to have either moderately, signiűcantly or high levels of incapacity.64 őe board is authorized to send an adult for an incapacity assessment in medical and rehabilitation institutions to re-examine the medical diagnosis and the degree of his or her dysfunction. őe űndings of the evaluation must be presented by way of an oůcial report, the format of which is determined by the ministry of labour, healthcare and social security of georgia. once űnalized, the report is given to the adult or his/her legal representative, and a brief conclusion of the capacity evaluation must be sent, within 3 days, to the lawonmedicalexamination,200arts. 4 and 562 ibidarts.and 8 georgianlawonmedicalexamination,200art. 10. ibidch.ii,art. 10.human rights and guardianship in georgiaappropriate state institution.65 őe results of the evaluation may be formally challenged within a period of one month, either by the adult in question, his/her representative, and/or institution which provides social security to the individual.66őe challenge must be directed to the board or a governmental body such as ministry of health care and social security.67 although provision is made for in-person evaluations,68 there are speciűc exceptions which considerably lessen the protection aőorded to adults. legislation states that adults shall be examined at their home or health institution if unable to attend an examination at the board itself. however if the distance between the adult and the suggested appointment is ‘long‘ or the home of the adult is diůcult to reach, the examination can take place in the absence of the adult69 though the person in question or his legal representative have to give their consent on this. őe failure to provide speciűc guidance as to what can be considered ‘long distance‘ or a ‘place that is diůcult to reach‘,70 makes this provision even more alarming. human rights standards: a űnding of the deprivation of legal capacity removes an individual‘s right to make decisions about all areas of his or her personal and public life. it, therefore, interferes with those rights to privacy that are protected by international law. in a democratic society, such interference must be necessary and in accordance with the law. legislation should contain provisions to ensure that a decision to deprive an adult of legal capacity is based on current and reliable information. recommendation no. r(99)4 calls for a thorough in-person meeting between the adult and a ‘suitably qualiűed expert‘. it asserts the requirement for an up-to-date report to attest to the person‘s condition and notes that the resulting report should be recorded in writing. in h.f. v. slovakia, the ecthr speciűcally cited recommendation no. r(99)4 in connection with the obligation to consult recent medical reports in determining legal capacity. in this case, it found that relying on an outdated psychiatric report did not amount to suůcient procedural safeguards to protect the applicant, whose legal capacity was at issue. it added that a request for a second psychiatric report would have been in the interests of the adult concerned.7365 ibid, art. 55.2.66 ibid, art. ibid, art.60,clause 12. ibid, art. 5169 ibid, art. 51.2. ibid.71 seearticle 8 oftheeuropeanconventiononhumanrightsandart. 17 oftheinternationalcovenantoncivilandpoliticalrights. principle 12.73 h.f. v. slovakiaapplicationno. 547/00,judgment 8 november200notethatthejudgmentisonlyavailableinfrench.foranenglishsummary,seepressreleasebytheregistraroftheeuropeancourtofhumanrights, 8 november200mental disability advocacy center322.6.3quality of evidence provided to the court in incapacity cases (indicators 8-12)indicator 8a finding of incapacity requires a demonstrable link between the underlying diagnosis and the alleged inability to make independent decisions.conclusion: legislation does require a demonstrable link between the adult‘s diagnosis and the alleged inability to make decisions, which has to based on a medical expert‘s conclusions, and űnding of incapacity has to be carried out by the court.analysis: as mentioned earlier, georgian legislation diőerentiates between four levels of incapacity: slight, moderate, signiűcant and high. deprivation of legal capacity can occur after a űnding of all but a slight incapacity.74 őe board, which is a certiűed institution for incapacity assessment, has an obligation to examine the dynamics, structure and factors of the adult‘s capacity limitation. őe board bears the responsibility for establishing the link between the capacity limitation status and the diagnosis; it also has to set the period after which the status will be re-examined.75 őe board is the body that develops individual rehabilitation programmes (considering diőerent types of rehabilitation, including social, in-house care-taking and material).76 based on the board‘s decision on a temporary or permanent capacity limitation of the adult, a guardian shall be assigned to the adult in question. őe decision on the adult‘s level of incapacity can be challenged by the adult or his/her legal representative in court. őe capacity status has to be re-examined in a course of every one or two years, depending on the degree of the capacity limitation; for high levels only once every two years. in some cases, where it is expected that rehabilitation will occur, it is possible for incapacity status to be established for a period as short as six months.77 human rights standards: őis indicator űnds express support in the mental illness principles, speciűcally principle 4(5) which states: ‘[n]o person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.‘ accordingly, it would be contrary to this principle to restrict legal competence by classifying an individual as having been deprived of legal capacity without demonstrating that a mental disability impaired the individual‘s ability to make independent choices and to what degree the mental disability warranted limiting such decisions. 74 georgianlawonmedicalexamination,200art. 10.75 ibidart. 46,a,b,i. ibidart.9.77 ibidch.iii,art. 12.human rights and guardianship in georgia33őis indicator also invokes several of the recommendation no. r(99)4 principles. principle 6 on proportionality states that if a measure of protection such as guardianship is necessary, it should be proportional to the degree of functional capacity of the adult and tailored to his or her circumstances and needs. őis reěects an understanding that psycho-social disabilities can ěuctuate, and that individuals will need diőerent levels of protection and retention of rights based on the nature and severity of the underlying disability. principles 7 and 12 provide that an adequate investigation and assessment of the adult‘s particular needs is an issue of fundamental fairness. further, article 8 of the echr mandates that any interference with a person‘s private life be proportionate to the aims pursued. in essence, complying with international human rights standards will mean that legal capacity is restricted only to the extent necessary to assist the individual in making decisions. indicator 9a finding of incapacity is based upon sufficient evidence and serves the interests of the adult. conclusion: although provision is made for speciűc procedures and evidence to be obtained before and during the capacity evaluation. in the process the interests of the adult must be considered by the expert commissioned to evaluate the adult‘s capacity. analysis: legislation combined with instructions speciűed by the ministry of health, labour and social security concerning the procedures for conducting an incapacity assessment purport to seek transparency. for example an adult or his/her representative is permitted to nominate external specialists to attend the medical evaluation of the board and examine that adult‘s level of capacity. such experts are however not granted the same authority as the members of the board.78in addition, an incapacity assessment must be carried out after proper diagnostic treat-ment and rehabilitation activities have been conducted in relation to the adult,79 and only on the basis of recent documentation and information. to allow this, the board is speciűcally authorised to request and to obtain any relevant information from any body and/or institution, regardless of their legal status, on the person in question.80 human rights standards: őis indicator looks at two elements of incapacity determination and subsequent guardianship – the evidentiary basis submitted to the domestic court and the impact of the ruling upon the adult‘s interests. 78*hrujldq/dzrq0hglfdo6rfldo&dsdflwduwvdqg lawonmedicalexamination,art.6. ibidart. 47mental disability advocacy center34to be suůcient, the evidence must meet speciűc qualitative standards. recommen-dation no. r(99)4 provides that the decision maker in incapacitation proceedings should see the individual personally, and that an up-to-date report from a qualiűed expert must be submitted. ‘qualiűed expert‘ is not deűned, but should be under-stood as referring to a psychiatrist or psychologist, possibly with specialized train-ing in capacity assessment rather than a general medical practitioner. őe united nations has suggested in addition that experts must conduct an evaluation of the adult‘s social capacity. as detailed above, the ecthr has highlighted the necessity of a qualiűed expert report to determine capacity.83 in h.f. v. slovakia, it held that statements by the concerned individual‘s former spouse and lay witnesses, in combination with a psychiatric evaluation that was one and a half years old, was not suůcient evidence for a deprivation of legal capacity. őe case, therefore, not only clariűes that an expert report is necessary for states to meet their obligation under the echr, and that lay witnesses are not a satisfactory substitute, but also that the report must be recent in order to reěect the functional capacity of the individual at the time of the hearing. őese points indicate that even an expert opinion on mental capacity may not meet the required burden of evidence. secondly, as suggested by recommendation no. r(99)4, ‘[i]n establishing or imple-menting a measure of protection of an incapable adult the interests and welfare of that person should be the paramount consideration‘.84 to achieve this, the individual‘s circumstances must be taken into account and the protection oőered by guardianship weighed against negative consequences for the individual. as provided in principle 5 of recommendation no. r(99)4, restriction should not be established ‘unless the measure is necessary, taking into account the individual circumstances and needs of the person concerned.‘ for example, as employment is an important source of social interaction and self-esteem for an employed individual, guardianship may not be in the individual‘s best interest if, as a result, the right to work is restricted. such con-siderations should be examined during proceedings in order to meet the necessity, subsidiary, and proportionality requirements prescribed in principles 5 and 6. 81 principle 12. seeungeneralassembly,declarationontherightsofmentallyretardedpersons‘resolution85(xxvi),20december 171para. 783 h.f. v. slovakiaapplicationno. 547/00,judgment 8 november20084 principle 8).human rights and guardianship in georgia35indicator selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered. conclusion: georgian legislation provides criteria for selecting a guardian őe adult‘s wishes and feelings can be taken into account, but not when the adult is involuntarily institutionalised.analysis: legislation suggests that the consent of the adult is to be considered when choosing a guardian.85 however, as there is no clear regulation as to who may be a guardian by law, and since the system of public guardianship does not exist in georgia, guardians tend to be immediate family members or relatives of the adult in question. legislation does however86 provide a list of those individuals who may not be appointed as a guardian.87for the position of guardians or care-takers the following individuals may not be appointed:a person who has not reached the age of eighteen.a person who has been acknowledged as incapable by the court.a person who has been deprived from the right of parenthood.an adopter in case adoption was annulled due to her/his failure to carry out parental responsibilities.a person who is facing removal from the position of guardian or care-taker because they did not fulűl their obligations. nevertheless, the wishes and feelings of the person in question may be considered in selecting a guardian.however, in case individuals are hospitalized involuntarily, their wishes and feelings in relation to the selection of a guardian are not considered as they are not present at the guardianship appointment proceedings. human rights standards: őe disability convention requires states parties to ensure that the ‘measures relating to the exercise of legal capacity respect the rights, will and preferences of the person‘.88 őis, presumably, includes the appointment of a guardian. 85 guardianshiplaw,art. 12(2). ibidart. 18387 forthelistofthoseindividualswhomaynotbeappointedasguardians,seethelawonguardian,article 183: 3huvrqvzkrpdqrwehdssrlqwhgdvjxdugvrufduhwdnhuv88 conventionontherightsofpersonswithdisabilities,adoptedbytheungeneralassemblyondecember2006,refa/6/611art. 12().saqartvelosipolitikis analiziwe respect the privacy of our clients, so we have chosen models, not clients, to appear in these photographs.mdac advances human rights.i was under guardianship for twenty years. i wasn‘t allowed to use my own money, or decide where to live. i wasn‘t even allowed to work or vote. i wanted to make my own decisions.fsiqikuri uunarobis dacvis centrimeurveoba da adamianis uflebebi saqartvelosimeurveobis kanonis da politikis analizi2007meurveoba da adamianis uflebebi saqartvelosi3contentsarmasrulebeli reziume5rekomendaciebi81. sesavali111.1 meurveoba111.2 meurveobis gamokvleva141.3 ariarebebi151.4 metodi16 1.4.1 pirveli etapi: kanonmdeblobis mimoxilva 16 1.4.2 meore etapi: cnobebis segroveba sferodan 161.5 indikatorebi meurveobis adamianis uflebebze dafuznebuli sefasebis 172.gmeurveobis kanoni da politika saqartvelosi 192.1 sesavali192.2saqartvelos demografiuli da socialuri peizaji 202.3 saqartvelos sakanonmdeblo sistema212.4meurveobis kanoni saqartvelosi 212.5 saqartvelos meurveobis procesi 232.6saqartvelos kanonmdeblobis adamian uflebebis safuzvlebze sefaseba 26 2.6.1principebi romelic arinisneba sakanonmdeblo carcosi (indikatori 1) 26 2.6.2 proceduruli uflebebi meurveobis procesis dros (indokatorebi 2-7)28 2.6.3 mtkicebulebebis xarisxi, romelic waredgineba sasamartlos qmedunarianobis dadgenis saqmeebis ganxilvisas. (indikatorebi 8-12)39 2.6.4 mowifulis uflebebi meurveobis dadgenis semdeg (indikatori 13-17) 46 2.6.5 meurvis movaleobebi imis semdeg rac meurveoba dadginda (indikatorebi 18-25) 56 2.6.6meurveobis aucilebloba da alternativebi (indikatorebi 26-29) 67annedanarti a: terminebis sityvari73danarti b: indikatorebis semajamebeli cxrili76dd
