guardianshipanalysis of law, policyand practiceand human rightsin kyrgyzstanwe 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.mental disability advocacy centerguardianship and human rights in kyrgyzstananalysis of law, policy and practice2007human rights and guardianship in kyrgyzstan3contentsexecutive summary5recommendations71. introduction101.1guardianship101.2researching guardianship121.3acknowledgements121.4method………………………………………………………………………………………13 1.4.1 stage one: legislative review13 1.4.2 stage two: collection of data from the field141.5indicators for a human rights-based assessment of guardianship 142.guardianship law and policy in kyrgyzstan162.1introduction162.2demographic and social landscape in kyrgyzstan162.3kyrgyzstan‘s legal system182.4guardianship law in kyrgyzstan192.5kyrgyzstan‘s guardianship/incapacity process202.6human-rights based assessment of kyrgyzstan‘s legislation21 2.6.1principles running throughout legal frameworks (indicator 1)22 2.6.2 procedural rights during guardianship proceedings (indicators 2-7)23 2.6.3 quality of evidence provided to the court in incapacity cases (indicators 8-12)31 2.6.4 rights of the adult after guardianship is established (indicators 13-17)36 2.6.5 obligations of the guardian after guardianship is established (indicators 18-25)41 2.6.6 necessity of guardianship and alternatives (indicators 26-29)503.guardianship practice in kyrgyzstan543.1aims and objectives543.2methodology543.3research findings of guardianship in practice57 3.3.1 the practice of the guardianship process57 3.3.2 interviews…………………………………………………………………………….613.4general observations and the need for further research66 mental disability advocacy center4nneesa:glossary of terminology68b:summary table of the indicators70c:protocol for researchers on protection of research data and participants73d:list of interviews…………………………………………………………………………………..76e:data gathering sheets77human rights and guardianship in kyrgyzstan51. xeutve mmarőis report is the űrst work of its kind to look in any depth into laws and practice relating to guardianship in kyrgyzstan. although mdac managed to obtain an understanding of legislation impacting on the guardianship process, the opportunity to gain a comprehensive understanding of actual practice was denied to mdac: as in most of the countries where mdac carried out similar research, 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. much remains much to be done to bring the new guardianship law in line with current human rights standards. it is these standards, and the compliance of kyrgyzstan with them, in legislation and in practice that form the focus of this report. őe legal and moral imperatives on kyrgyzstan 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.1 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 kyrgyz constitution provides for respect for the human rights of all people, these principles are rarely mentioned with respect to people with psycho-social (mental health) or intellectual disabilities and 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 kyrgyzstan 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:adults who are deprived of legal capacity in kyrgyzstan are subject to signiűcant, arbitrary and automatic deprivations of their human rights. őese include a deprivation of their right to property, to work, to family life, to marry, to vote, to conventionontherightsofpersonswithdisabilities,adoptedbytheungeneralassemblyondecember2006,refa/6/611art. 12.mental disability advocacy center6associate freely, and to access courts. even if not speciűcally deprived of certain rights, a lack of procedural capacity ensures their inability to enforce them.plenary guardianship is kyrgyzstan‘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). őe guardianship law is too vague and lacks clarity: regulation by numerous laws has led to frequent inconsistency and uncertainty. 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. mdac urges the kyrgyz government to reform all its laws that impact upon guardianship in the kyrgyz republic. 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 kyrgyzstan. mdac speciűcally urges the government to design 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 kyrgyzstan7. remmendaons őis report suggests that kyrgyz guardianship law and practice fails to meet a number of the basic requirements of the international law of human rights. őe lives of those people who are currently under guardianship in kyrgyzstan could be signiűcantly improved only 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 kyrgyz 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 29 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 kyrgyz government should require use of least restrictive alternatives that promote the independence as well as protect the adult by:creating supported decision-making services. őe establishment of such ser-vices can be made in the framework of a national disability programme. 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. őis role is limited to merely providing 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 26).abolishing plenary guardianship (indicators 20 and 27). requiring that that guardianship is used only as a last resort (indicator 26).–––––mental disability advocacy center82. maximise autonomy: őe kyrgyz 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: removing the automatic ban on people under guardianship from exercising fundamental rights as the right to work, right to property, right to family life, right to marry, right to vote, and right to associate (indicators 3-7).listing and expanding the areas in which an adult subject to guardianship retains his or her capacity to make decisions at all times (indicator 20). requiring guardians to seek the least restrictive living arrangements for adults. (indicator 2).3. improve procedures: őe kyrgyz 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 23). removing the option of detaining adults during the process for determining incapacity (indicator 5). ensuring consistency in legislation so that it is possible for an adult to apply for modiűcation of guardianship at any time (indicator 29). 4. prevent abuse: őe kyrgyz government should reduce the potential for abuse of the guardianship relationship by:establishing objective criteria for selecting a guardian and clearly prohibiting people who have coněicts with the interests of the subject adult from serving as guardian (indicators 0 and 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). human rights and guardianship in kyrgyzstan9viewing guardianship as a temporary measure by ensuring that there is compulsory review of guardianship, and apply this to retrospective reviews (indicator 28). 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 (eg. when a guardianship oůce rejects an adult‘s request to obtain copies of documentation relating to his/her guardianship (indicators 2, 25, 29).obliging guardianship oůces of local authorities to establish an eőective and accessible complaints system which adults under guardianship can directly access; and obliging such guardianship oůces to provide information in an understandable format to all adults under guardianship (indicator 25).implementing these recommendations would signiűcantly improve the quality of the kyrgyz guardianship system by strengthening the protection of the human rights and interests of adults subject to guardianship. mdac looks forward to engaging with the kyrgyz authorities in planning and implementing reform towards making the existing guardianship system more compliant with international human rights standards, whilst at the same time working towards a paradigm shift of supported decision making, where adults retain legal capacity, and are provided with individualised support. 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 capacity to make personal decisions and the person appointed to make decisions on that adult‘s behalf.2 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‘.3 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 status. mdac‘s 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. 7kroxjkoxttklvrhport0’$&xvhvtkhthrpµohjaofapaflt¶avgh�nhglntkh*oovvaratpajh’liihrhntmxrlvglftlonvxvhgliihrhntthrplnooojtogh�nhtkhohjaolnaelolttoactonone‘sownbehalf,suchas,forinstance,‘incapable‘or‘incompetent‘.somelawsproylghior�nglnjoipartlaoorolplthgohjaofapaflthuman rights and guardianship in kyrgyzstan11as 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.4 in a small number of jurisdictions, such as jurisdictions 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 is supported or assisted decision-making.5 as a result, legislators and courts in these jurisdictions 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 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 2 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 capac-ity 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 inherit property, to control their own űnancial aőairs and to have equal access to canadianassociationforcommunityliving(cacl)report.taskforceonalternativestoguardianship,august 1992,availableat:http://www.worldenable.net/rights/adhocguardianship.htm. 6hhtkh*oovvaratpajhiorgh�nltlonoivxpporthgghflvlon-panlnjmental disability advocacy centerbank 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 2 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 in kyrgyzstan. 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, including the un disability convention. 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 2004 by examining the legislative structure of guardianship systems in a number of states. őe focus was initially on four: bulgaria, hungary, russia and serbia. in 2006, mdac began research in an additional four countries: croatia, the czech republic, georgia and kyrgyzstan. a separate 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 legal analysis. 1.3 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), alexandra korac and petar sardeliž (croatia), zuzana benešová and david kosar (czech republic), nina dadalauri (georgia), dániel kaderják (hungary, a senior law human rights and guardianship in kyrgyzstanstudent who also served as project assistant), meder dastanbekov (kyrgyzstan), anna smorgunova (russia), and vidan hadůi-vidanoviž (serbia).beginning in february 2003, long before the guardianship project űeld research began, mdac gathered a 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.robertm.gordon, director and professor, school of criminology, simon fraser university, vancouver, canada;dr.georghøyer, professor of community medicine, university of tromsø, norway;dr.krassimirkanev, chairman, bulgarian helsinki committee, soűa, bulgaria;mr.markkelly, director, irish council for civil liberties, dublin, ireland; anddr.jillpeay, 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. research in kyrgyzstan was carried out by meder dastanbekov who wrote the űrst draft. istván fenyvesi and oliver lewis produced the űnal report.1.4 method1.4.1stage one: legislative reviewstage one of the research, the results for kyrgyzstan of which are found in section 2 of this report, is a de jure study of the legislative texts, rather than how they are applied. őe study examines the types of guardianship arrangements available under national laws as well as any other relevant national legislation by:studying the legal procedures for obtaining, modifying and terminating guard-ianship and the rights of the parties to such procedures.documenting the rights of the person alleged to lack capacity throughout the guardianship process.mental disability advocacy centerassessing which rights are taken away after an adult is deprived or restricted of legal capacity. analysing the power and authority of guardians, their accountability and how they are monitored, as well as the processes, for bringing complaints against them.1.4.2stage two: collection of data from the fieldstage two, the results for kyrgyzstan of which are found in section 3 of this report, focuses on a de facto6 examination of guardianship practices within each target country by observing court hearings, reviewing court űles and, to the extent applicable and possible, observing guardianship agency proceedings and reviewing guardianship agency űles.because certain information is available only from those who participate in guardian-ship processes, mdac has attempted to follow cases, observe court and guardianship authority hearings, review case űles, and conduct interviews. őis manner of data col-lection gives an opportunity to capture a snap-shot of guardianship practices. ethical concerns are raised when conducting research that includes interviews of par-ticipants, some of whom have psycho-social (mental health) disabilities or intellectual disabilities. őese concerns are about the privacy and the capacity of interviewees to understand the purpose of the research and to give informed consent to participate in it. mdac has carefully considered the ethical issues that are raised by this aspect of research and has adopted guidance to protect the participants and the data they provide. each researcher created a numerical system of maintaining information and stored the key and raw data in diőerent locations. őe guidance sets out standards for informing research participants about the voluntary nature of participation in the research, the right to refuse participation at any time, and the conditions of conűden-tiality surrounding the information which they provide.1.5 indicators for a human rights-based assessment of guardianship őroughout the project, mdac has used 29 indicators against which legislation is analysed.7 őese indicators are based in large part on the key document concerning guardianship and supported decision-making, namely the council of europe committee of ministers‘ recommendation no.r(99)4 ‘principles concerning the legal protection of incapable adults.‘ further indicators were derived from ‘actual;existinginfact;havingeffecteventhoughnotformallyorlegallyrecognized.‘black‘slawdictionary(west8thed.200). 6hh$nnh[iortaeoh-vxpparoiaoo lnglfatorvhuman rights and guardianship in kyrgyzstanthe recommendation‘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 guard-ianship 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 not 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, and hopes that the indicator system will generate research in other countries. seethefulltextofthememorandumathttps://wcd.coe.int/viewdoc.jsp?id=3. ‘soft%oafn¶vcommitmenthowever,mental disability advocacy center. guardianship l policy n kyrgyzst.1introductionőe kyrgyz republic is a mountainous country in the heart of central asia. őe country has borders with kazakhstan, uzbekistan, tajikistan and china. őe population of the kyrgyz republic as of january , 2005 was 5,20,500 people. major religions include islam, christianity, and buddhism; the majority of the population are muslim.őe kyrgyz people received national independence and sovereignty in a peaceful way after the breakup of the soviet union. on december 5, 990 the declaration of sovereignty of the republic was proclaimed, and on august 3, 99 has been the day of the declaration of independence.according to the constitution, the kyrgyz republic is a sovereign, unitary and democratic republic that is based on the principles of a secular state. őe territory of the kyrgyz republic is divided into the following administrative-territorial units: 7 provinces (batken, chui, issyk-kul, jalalabat, naryn, talas, osh), 40 districts, 22 cities, and 468 municipal administrations. 2 demographic and ocial andscape of kyrgyzstan as of january 2005, there were 5,20,500 people living in the kyrgyz republic. of these, 2,530,400 were men and 2,590,00 women. of the total population, ,722,09people were under the age of eighteen.őe number of registered people with mental health problems who received treatment or were in hospitals in 2003 was 57,089. of those, 23,479 lived in cities, and 33,60 in rural areas.11 according to the information provided to the researcher by the ministry of health in june 2007, since 2003 the number has increased to 59,00 people.as of january , 2007, the following institutions were under the jurisdiction of the ministry of health: ‘hpojrapklfhar-eoonoitkh.rj]5hpxeolf-1atlonao6tatlvtlfv&oppltthhoitkh.rj]5hpxeolf%lvknhn11 public health in the kyrgyz republicstatisticalbook,bishkek200 $nvwhroi0lnlvtroikhaotkoi.rj]5hpxeolfln-xohuman rights and guardianship in kyrgyzstaninstitutionsnumber of beds national center of mental health (ncmh) in bishkek660national psychiatric hospital in chymkorgon850national psychiatric hospital in kyzyl jar505osh oblast center of mental health70batken oblast center of mental healthhospitals with psychiatric departments:naryn oblast combined hospitaltalas oblast combined hospitalissyk kul oblast combined hospitalkyzyl kia city territorial hospitalmailusuu city territorial hospitalleylek district territorial hospital25table 1.psycho-neurological care homes which are under the jurisdiction of the ministry of labour and social care (statistical data as of june , 2007)care homesnumber of peoplenumber of available places1.belovodskiy psycho-neurological care home for children3002552.jalalabatskiy psycho-neurological care home for children11203.jayilskiy psycho-neurological care home for women2604.ak suuskiy psycho-neurological care home for women882965.tokmokskiy psycho-neurological care home no. for men27530013 statisticaldatareceivedfromtheorganizationalanalyticalprovisiondepartmentoftheministryoflabourandsocialdevelopment.mental disability advocacy center6.tokmokskiy mixed psycho-neurological care home #2807.kadamjayskiy mixed psycho-neurological care home220230őe majority of psychiatric assessments in civil cases are medical assessments on the capacity of adults before they make property transactions. őe table below provides the percentage of guardianship cases from the overall number of civil cases:200420052006ncmhtotalncmhtotalncmhtotalpsychiatric examinations conducted on civil cases355368837394percentage of these examinations which were guardianship cases 22-69%27-50%75%2-49-59%57-3 kyrgyzstan‘s egal ystemőe legal system of kyrgyzstan is based on the roman-german legal system, and is similar to the legal systems of other countries of the former soviet union countries. őe legal system of the kyrgyz republic was shaped and developed as part of the soviet state law. after gaining independence from the soviet union, kyrgyzstan ad-opted some features of the french legal system as regards the state structure, as well as from the russian legal system. őe kyrgyz judicial system is based on the constitution and laws, and consists of the constitutional court, the supreme court, as well as local courts.changes in the local self-government system started with the so-called ‘perestroika‘, the transition period that began in april 985. in 990, the law of the ussr on the general principles of local self-government was adopted. an important stage in the development of local self-government in kyrgyzstan became the adoption of the law 14 ,niorpatlonproylghgetkh0lnlvtroi+haotkoi.rj]5hpxeolftotkh0’$&avoi-xo human rights and guardianship in kyrgyzstan‘on local self-government‘ on 9 april 99, and the creation of a legal mechanism for decentralisation of the government. őe most recent of these is the law ‘on local self-government and local state administration‘ which was adopted on 2 january 2002. according to this, the system of local self-government consists of local councils (keneshes), their executive-administrative bodies and bodies of territorial public self-government, and also of assemblies and meetings of citizens. institutions of local self-government function in close interaction with the local state administration.international treaties and agreements to which the kyrgyz republic is party come into force as prescribed by law and became a constituent part of kyrgyz law. őe international laws have a superior authority to domestic law. őe kyrgyz republic is a party to several united nations human rights treaties: international covenant on civil and political rights, international covenant on economical social and cultural rights, international convention on the elimination of all forms of racial discrimination, convention on the elimination of all forms of discrimination against women, convention against torture and other cruel, inhuman or degrading treatment of punishment, and convention on the rights of the child.20őe ombudsman carries out control of constitutional rights through the powers given to him by the law ‘on the ombudsman of the kyrgyz republic‘ of 3 july 2002. őe ombudsman is elected by the parliament (jogorku kenesh) by ballot for a űve-year term.4 guardianship aw in kyrgyzstan guardianship is regulated by the civil code, the civil procedure code and the law on guardianship and tutorship.őe civil code provides the deűnition of legal capacity and deűnes when it can be limited or deprived. őe civil procedure code regulates the process of depriving an adult of legal capacity, and determines the procedure and order of applying, considering, and assessing the presented evidence, of making decisions and appealing court‘s decision. őe law on guardianship and tutorship describes the obligations of the local authority in guardianship related issues. őe law in its modern form dates back to 949 with the so-called legal instruction of patronage, guardianship and adoption of children left without parents. őis law 15 5atl�hgon-anxar 5atl�hgon-anxar 17 5atl�hgon2ftoehr 5atl�hgon0arfk 5atl�hgon2ftoehr 20 5atl�hgon1oyhpehr mental disability advocacy centerprimarily regulated the obligations of the local authority aőecting children under guardianship. in june 974 a guardianship law was adopted which was in force until 8 april 2002, when the government annulled it. no new law was adopted, which created a lacuna in regulation between april 2002 and august 2006, when the new guardianship law came into force. őis law will be examined further in this report. it is essential to note that on 3 july 2007, at the time of űnalizing the report, an amendment related to guardianship issues was made to the civil code. namely, a change was made in the area of determining the authority which appoints guardians and controls the decisions/actions of guardians. from now on, the civil code speciűes a guardianship agency as a department on family and children support and notes that it is a specialized department on the protection of rights and interests of children, and does not mention the protection of rights and interests of adults. it is also important to note that agencies with similar name were established in 2004, but in framework of state programme on realization of children rights in kyrgyzstan entitled ‘new generation‘. őe recently adopted law repeatedly shows the indiőerent attitude of the government to issues related to the guardianship of adults leaving the care of incapacitated adults out of the activity of the newly established department.5 kyrgyzstan‘s guardianship/incapacity rocessincapacity process consists of two separate steps: depriving an adult of legal capacity. appointing a guardian. őe űrst step is regulated by the civil procedure code and carried out by a court. according to the civil code, ‘no one‘s legal capacity can be limited except in cases prescribed by the law‘.22 őe űrst step of depriving an adult of legal capacity takes place when an applicant űles an application to the court to deprive an adult of legal capacity.23 on receiving such an application the court orders a psychiatric assessment. ően the court considers the evidence presented to it and makes a decision. őe adult is presumed to have capacity throughout the court proceedings and therefore is, theoretically, entitled to procedural rights enjoyed by any other person. a prosecutor and guardianship oůcer should be present at the court hearing, even though they &lylo&oghart para lnhgltlonoioawvon-xo22 civilcode,art. 57 $fforglnjtotkh.rj]ohjlvoatlontkhprofhvvoi�nglnjanagxotlnfapaeohfanehinitiatedbyfamilymembers,closerelatives(parents,children,brothersandsisters)regardlessofwhethertheylivedtogetherwiththeadultornot,theguardianshipauthority,prosecutororpsychiatricinstitution.human rights and guardianship in kyrgyzstanmay be applicants in this process.24 őe court‘s role ends when it decides whether or not to deprive the adult of legal capacity. if the court deprives the adult of legal capacity, the second step involves the appointment of a guardian. őis is an administrative procedure conducted by the guardianship oůce of the local authority (known as the ‘guardianship authority‘). őe guardianship authority has duties in connection with cases involving children and family issues as well as dealing with adult guardianship. once the guardianship authority appoints a guardian, the authority must supervise the guardianship, which includes overseeing the activities of guardians and resolving disputes. human-rights based assessment of kyrgyzstan‘s egislationmdac has developed a series of 29 indicators to be used in assessing guardianship legislation. őese indicators are derived from international human rights law and standards, such as the european convention on human rights and the council of europe council of ministers recommendation no. r(99)4 on adults and incapacity. it should be noted here that where an issue or assertion has not been clearly established in international law or standards, national laws and practices from diőerent countries are considered. őe űrst indicator highlights principles that run throughout the legal framework, perhaps indicating general societal attitudes towards persons with mental disabilities. őe remaining indicators, like guardianship systems themselves, are divided into three major areas. őe űrst area addresses the rights of the adult prior to placement under guardianship. őe second area addresses the rights of the adult after deprivation of legal capacity as well as the corresponding responsibilities and accountability of the guardian. őe third area explores less restrictive alternatives as well as mechanisms for review and termination of guardianship once imposed. within each box is a concise statement of the indicator. őe conclusion regarding the apparent compliance of the law to the stated indicator is below, followed by an analysis of speciűc provisions of the kyrgyz law that support the conclusions. finally, in the section termed ‘human rights standards‘ mdac provides a basis derived primarily from recommendation no. r(99)4 and the european convention on human rights. in a few instances, where no clear standard was espoused within these two documents, examples of acceptable legal provisions are provided. civilcode,art.28mental disability advocacy center222.6.1principles 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 treatment for all people, but they do not explicitly specify people with mental disabilities.analysis: őe kyrgyz constitution states that ‘the dignity of individuals in the kyrgyz republic is absolute and inviolable‘ and that ‘every person from birth is entitled to basic human rights and freedoms‘. őese rights are recognised as absolute, inalienable, and protected by law and the courts from infringement by any other person. őe constitution further states that everyone is ‘equal before the law and courts and no-one shall be subject to any type of discrimination, violation of his rights and freedoms, on the grounds of ethnic origin, sex, race, nationality, language, religious belief, or other conditions or circumstances of a personal or social nature‘. disability as a status is not speciűed in the constitution, but it may be considered as falling within the deűnition of a condition of personal or social nature. őere is no statement of purpose in any law relating to guardianship. humanrightsstandards: 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 on those rights contained in the relevant international legal instruments.‘25 őis principle can be implemented in legislation by including a preamble or a 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.‘26 őe who cites the polish mental health protection act preamble as recommendationr(99)principle 126 worldhealthorganization,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 19.human rights and guardianship in kyrgyzstan23embodying this principle. őis example 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, this act proclaims […]‘27 a preamble such as this establishes the overriding values that should be applied to implementation of the law that follows. 2.6.2procedural 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.‘28 indicator 2the legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it.conclusion: legislation clearly identiűes who may initiate an application for deprivation of legal capacity, and states the foundation needed to support it.analysis: an application to deprive an adult of legal capacity should be lodged with the űrst instance district court. őe law speciűes those individuals who are eligible to lodge such an application.29 őey are: the adult‘s family members,30 the adult‘s close relatives (parents, children, brothers and sisters) regardless of whether they live with the adult, the guardianship authority, the prosecutor,32 and a psychiatric institution.őe only foundation needed to support an application is that the adult must have a diagnosis of a mental disorder. őe application should specify the type of mental mentalhealthprotectionact,m284 199poland,ascitedinwho,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 19.28 europeancourtofhumanrightsinthecaseofwinterwerpv.thenetherlands,application1omxgjphnt2ftoehr $ -(+55para29 civilprocedurecode,art.282. thecivilprocedurecodeallowstheadult‘srelativestoinitiateanapplication,butdoesnotgh�nhwkovxfkrhoatlyhvfaneh$fforglnjtotkh)aplo&oghiaplophpehrvarhthosewhowithwhomtheadultlives,isconnectedinrelationshipwith,andwithwhomtheadultkeepscommonhouseholdandbudget.31 civilcode,art.69,para. thelawprovidesthattheparticipationoftheprosecutorandguardianshipauthorityisobligatoryincasesseekingtodepriveanadultoflegalcapacity,regardlessofwhetherthe3rovhfxtor�ohgtkhappolfatlonmental disability advocacy center24disorder, as a result of which the adult is unable to understand the meaning and sig-niűcance of his or her actions or manage them.human rights standards: legislation should deűne the scope of individuals who may űle an application for the appointment of a guardian. so should it specify the nature of evidence necessary to demonstrate the need for such an application. with respect to the űrst factor, recommendation no. r(99)4 speciűes 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.‘33őe recommendation calls for ‘fair and eůcient procedures for the taking of measures for the protection of incapable adults‘.34 fairness in this context includes the provision of a law that clearly speciűes who can submit applications. őe second factor, or speciűcity requirement – that a guardianship application must have some merit on the face of it – is necessary in order to protect the adult against malicious accusations of incapacity. in the case of h.f. v. slovakia, the european court of human rights examined the procedure leading to the deprivation of an individual‘s legal capacity. őis procedure was based on an application by the individual‘s ex-husband and substantiated by a psychiatric report that at the time of the hearing was more than one year old. őe court found a violation of article 6() because, among other procedural defects, the slovakian court failed to secure suůcient evidence in light of principle 2 of recommendation (99)4 which requires an ‘up-to-date report from at least one suitably qualiűed expert.‘35 when legislation prescribes the type of evidence to be submitted with an application, a procedure such as that suőered by the applicant in h.f. v. slovakia can be avoided. 33 principle 11).34 recommendationno.r(99)principle 5).35 h.f. v. slovakiaapplicationno. 547/00,judgmentnovember200pleasenotethatthejudgmentisavailableonlyinfrench.foranenglishsummary,seepressrelease,europeancourtofhumanrightsregistrar,november200availableat:http://www.echr.coe.int/echr/en/header/press/press+service/introduction/.human rights and guardianship in kyrgyzstan25indicator 3an adult has a right to actual notice, 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: law does not provide for the right of the adult to be notiűed of, and to be present and heard at, court hearings. nor does law regulate the rights of adults in the procedure of appointing a guardian.analysis: őe civil procedure code mandates the attendance of the applicant, the prosecutor and the representative of the guardianship authority at legal capacity. őe law is silent on whether the adult must be notiűed or attend.36in accordance with general legal provisions regulating notiűcation of individuals participating in court cases, an adult participating in legal capacity proceedings should be notiűed about the place and time of the court hearings. őe law states that the court may encourage the adult‘s attendance at the court hearings unless the adult‘s state of health prevents it.37 in summary, notice is something that the court can give the adult, but it is not obliged to do so. articles that provide for the procedural rights of participating individuals in legal capacity deprivation process do not apply to the process of appointing a guardian, as appointment of guardianship is an administrative procedure. őe rights to be notiűed, to be present, and heard in the process for an appointment of guardian are not provided for. 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 be exercised without meaningful and actual notice. principle 11 of recommendation no. r(99)4 makes it clear that the adult must be informed of the proceedings, and that this must be done ‘in a language, or by other means, which he or she understands.‘38 őe explanatory memorandum to recommendation no. r(99)4 reiterates the necessity of this procedural safeguard, citing the requirements individuals,participatingincaseparties,thirdpersons,prosecutor,individualsprotectlnjotkhrv¶rljktvorpartlflpatlnjlnfavhiorvxeplttlnjh[phrtrhportv�olnjphrvonangpersonconcernedinspecialproceedings.civilprocedurecode,art.2,para.6.indeprivationoflegalcapacityprocessanadultispersonconcerned.37 civilprocedurecode,chapter 32,art.28(2). principle 11(2)alsoprovidesanexceptiontothenoticewhensuch‘wouldbemanifestlywithoutmeaningtothepersonconcernedorwouldpresentseveredangertothehealthofthepersonconcerned.‘itisthepositionofmdacthatnoticeofsuchhearingshouldalwaysbeprovidedasthereisnodisadvantagetoprovidingnoticeinallsituationsand,inadditiontothis,itseemsunlikelythatawarenessofsuchproceedingswouldputanadult‘shealthin‘severedanger.‘mental disability advocacy center26of article 6 of the european convention on human rights.39 őe language used in the principle recognizes that for an adult, notice as prescribed by general civil procedure law may not convey the meaning or ramiűcations of the proceedings. őerefore, actual notice must be given. a possible solution to otherwise vague laws is to incorporate a provision such as that in the american uniform guardianship and protective proceedings act. őis simply adds a provision requiring that ‘notice under this act must be in plain language‘.40with respect to the second element, namely to be heard, 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 european convention of human rights provides for fair trial rights in cases, including those where a person‘s civil rights and obligations are in question. őe european court of human rights has held that guardianship falls within the category of civil rights and therefore such proceedings must comply with the requirements of article 6.42indicator 4an adult has a right to free and effective legal representation throughout guardianship proceedings.conclusion: őere is no right to free and eőective legal representation throughout guardianship proceedings. analysis: őe constitution states that every citizen has the right to qualiűed legal aid and protection of rights and freedoms. in certain cases speciűed in law, legal aid is provided for free,43 but not for guardianship cases. &oxnflooi(xroph&oppltthhoi0lnlvthrv([poanator hporangxpto5hfopphn-dationr(999)4 onprinciplesconcerningthelegalprotectionofincapableadults.adoptedfebruary 1999,para. 52. seetheuniformguardianshipandprotectiveproceedingsact99para. 113(c).thisismodellegislationdraftedbythenationalconferenceofcommissionsonuniformstatelaws.ithasbeenendorsedbytheamericanbarassociation.thepurposeofthisuniformactwastoensuredueprocessprotectionforincapacitatedpersonsandtosubjectguardianstocourtjurisdictionthroughouttheunitedstates;consequently,itsdueprocessprovisionsmayalsoserveasmodelinotherjurisdictions.availableat:www.nccusl.orgvisited 1 may20041 principle 13 seewinterwerpv.thenetherlands,applicationno.73judgment4 october 19,(a/339)ehrr 3inwhichthecourtsaidthat‘[t]hecapacitytodealpersonallywithone‘spropertyinvolvestheexerciseofprivaterightsandhenceaffects‘civilrightsandobligations‘withinthemeaningofarticlepara. 1 […].divestingmr.winterwerpofthatcapacityamountedto‘determination‘ofsuchrightsandobligations.‘thisprinciplewavporhrhfhntorhai�rphgln0atthry6ooyanla$ppolfatlon1o mxgjphnt-xo para43 &onvltxtlonoitkh.rj]5hpxeolffk,,arthuman rights and guardianship in kyrgyzstan27an adult, as any other person involved in a court case, has a right to have a representative in the proceedings.44 őis right is not the same as a state obligation – that is, the adult can pay for a lawyer to represent him or her, but the state does not provide a lawyer if the adult cannot aőord one. from the moment the decision on deprivation of legal capacity comes into eőect, only the adult‘s guardian can represent the adult.45 human rights standards: recommendation no. r(2004)0 highlights that ‘persons with mental disorder should be entitled to exercise all their civil and political rights.46 it is a well-established principle of the international law, explicitly stated in article 4(3)(d) of the international covenant on civil and political rights (iccpr), that where liberty is in question, a person must have the right to free legal assistance and representation. it is clear, as pointed out by the european court of human rights, that procedures determining legal capacity directly implicate an individual‘s rights and obligations.47 as the requirements of article 4(3) of the iccpr are considered basic guarantees of a fair hearing,48 free and eőective representation should be interpreted as a requirement during all capacity proceedings. extension of this right to guardianship procedures 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.‘49 enforcing this requirement by providing eőective legal representation is especially crucial when the person is alleged to lack capacity to represent him or herself.50 deprivation of legal capacity may result in a 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, and so on). őe un general assembly recognized the importance of this obligation in the 99 mental illness principles, which state: [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. 44 $fforglnjtotkh.rj]ohjlvoatlonaoonjwltkolfhnvhgoawhrvanfapaeohlnglylgxaocanactasrepresentativeincivilcasesifheorshehasvalidatedhis/herauthorityinnotaroi�fh epro[&lylo3rofhgxrh&oghart45 legalrepresentativesofanadultareparents,fosterparentsandguardian.civilprocedurecode,art. 56. recommendationno.r(200concerningtheprotectionofthehumanrightsanddignityofpersonswithmentaldisorder,adopted22september200article 447 matter v. slovakia$ppolfatlon1o mxgjphnt-xo para seeunhumanrightscommittee,generalcomment 13para. 5 principle 7 see,v.germany,51 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyondecember 1799principle 1(6).mental disability advocacy center28indicator 5 an adult may not be detained in order to be subjected to an evaluation of his or her legal capacity.conclusion: an adult can, in ‘exceptional‘ circumstances, be detained to carry out an incapacity assessment. analysis: an adult can be detained in order for an incapacity assessment to be carried out only in exceptional cases.52 however, the law does not deűne what ‘exceptional‘ means, a legislative oversight which allows courts to interpret the deűnition broadly. human rights standards: őe un mental illness principles state that ‘no person shall be compelled to undergo medical examination 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 őe european court of human rights has examined the issue of detention in relation to forced psychiatric examinations under article 5 of the convention and the right to liberty. in nowicka v. poland, the court held that detaining an individual in order to fulűll an obligation under the law, such as a court-ordered psychiatric examination, is on its face a permissible action. however, the court held 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 thus constitutes a violation of article 5.54 in other cases, the court additionally held that forced psychiatric examinations violate article 6 (right to fair trial)55 and article 8 (right to respect for private and family life, home and correspondence)56 of the european convention on human rights. consequently, the mere possibility that a person may lack legal capacity, either partially or entirely, is not a suůcient basis, by itself, to involuntarily detain a person. civilprocedurecode,art.28para.2.53 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 5medicalexaminations.54 1owlfnay3ooang$ppolfatlon1o mxgjphntoi’hfhpehrparav-55 seev. 1111 seeworwa v. polandholdingthatmultipleexaminationsinshortperiodoftimeinfonnhftlonwltkvlploarfrlplnaofavhvfonvtltxthganxnmxvtl�hglnthrihrhnfhwltktkhapplicant‘sprivatelife.applicationno.2662/9judgment7 november200human rights and guardianship in kyrgyzstan29indicator 6an adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses). conclusion: law gives adults in legal capacity proceedings the same procedural rights as in any other court case.analysis: adults in legal capacity proceedings are theoretically entitled to all pro-cedural rights speciűed in the civil procedure code.57 an adult has the right to fa-miliarise him/herself with the case materials, to present and challenge evidence, to question witnesses of fact, expert witnesses and specialists, to provide oral and written explanations to the court, to oőer own arguments to all issues, to express opinions on arguments presented by other parties, and to appeal court decisions. 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 european convention on human rights, which guarantees a fair hearing in all determinations of 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, are all included within the right to a fair trial. őis safeguard is also stated in article 4(3) of the international covenant on civil and political rights, which lists the minimum guarantees of a fair hearing.60 in the case of proceedings on legal incapacity and guardianship, the ability of the adult to challenge evidence is especially important, because only when evidence is tested do weaknesses or hidden motivations come to light. for instance, through cross examination the court may be able to hear about family coněicts and the application being motivated by the possibility of having control of the adult‘s űnances. furthermore, at this stage, the adult may also be able to point out procedural irregularities, such as medical reports that are out of date or incomplete, as well as evidence demonstrating the adult‘s functional abilities.57 civilprocedurecode,art. 35 principle 7). forapplicationofarticle6(toguardianshipproceedings,seewinterwerpv.thenetherlands,applicationno.73judgment4 october 19.60 internationalcovenantoncivilandpoliticalrights,article 14)(e).seealsohumanrightscommittee,generalcomment 13para. 5 regardingarticle 14subsection 3 asgh�nlnjplnlpxpjxaranthhvmental disability advocacy centerindicator 7no adult is deprived of legal capacity without being the subject of a capacity evaluation, conducted by a qualified professional and based upon recent, objective information, including an in-person evaluation. conclusion: legislation requires an incapacity assessment before an adult is deprived of legal capacity. őis should be conducted by a psychiatrist and need not be done in-person.analysis: on receiving an application to deprive an adult of legal capacity, the court is obliged to order an incapacity assessment of the adult. őe legislation provides that an incapacity assessment may be conducted only by a psychiatrist. however, it does not say anything on the number of psychiatrist needed to carry out an incapacity assessment. őe guidelines on forensic mental examinations state that an expert‘s conclusion must be based on facts obtained in the process of medical assessment and medical documents on the health history of the adult. law and guidance do not mandate in-person assessments to be carried out. human rights standards: a űnding of legal incapacity removes an individual‘s right to make decisions about all areas of his or her personal and public life. it, therefore, interferes with rights to privacy protected by international law.62 such interference must be in accordance with the law and necessary in a democratic society. legislation should therefore contain provisions to ensure that a decision to deprive an adult of legal capacity is based upon current and reliable information. recommendation no. r(99)4 calls for a thorough in-person meeting between the adult and a ‘suitably qualiűed expert.‘ őere must also be an up-to-date report to attest to the person‘s condition and notes that the resulting report should be recorded in writing.63 in h.f. v. slovakia, the european court of human rights cited recommendation no. r(99)4 in connection with the obligation to consult recent medical reports in determining legal capacity. in h.f., the court found that relying on an outdated psychiatric report did not amount to suůcient procedural safeguards to protect the applicant whose capacity was at issue. őe court additionally stated that a request for a second psychiatric report would have been in the interests of the adult.64 *xlgholnhvoniorhnvlfphntaoh[aplnatlonprofhgxrhlntkh.rj]5hpxeolfpara62 seearticleoftheeuropeanconventiononhumanrightsandarticle 17 oftheinternationalcovenantoncivilandpoliticalrights. principle 12. h.f. v. slovakiaopcit.human rights and guardianship in kyrgyzstan2.6.3quality 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 not explicitly require a demonstrable link between the adult‘s diagnosis and the alleged inability to make decisions. analysis: őe law does not specify that there should be a link between the mental health diagnosis and the alleged inability to understand the signiűcance of actions and/or control them. instead, the law provides merely for these two elements (diagnosis plus ability to understand) to coexist. őe guidelines on forensic mental examination procedures speciűcally indicate that the results of a medical assessment shall be based on the facts obtained by the expert in the process of examination of the adult.65 őe guidelines indicate that one of the objectives is to determine the mental condition of the adult.66human rights standards: őis indicator űnds express support in the un mental illness principles which states at principle 4(5) that, ‘no 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.‘ őere must therefore be a demonstrable link between a diagnosis and limitation or deprivation of legal capacity. őis indicator also invokes several of the r(99)4 principles. principle 6 on propor-tionality states that limitation or deprivation of legal capacity must be proportional to the degree of an adult‘s capacity and tailored to his or her circumstances and needs. őis reěects an understanding that mental disabilities may ěuctuate. people need diőerent levels of protection based on the nature, seriousness and ěuctuation of the disability, which may vary throughout a person‘s life. principles 7 and 2 provide that an adequate investigation and assessment of an adult‘s particular needs is an issue of fundamental fairness. furthermore, article 8 of the european convention on human rights mandates that any interference with a person‘s private life should be proportionate to the aims pursued. compliance with international human rights standards suggests that legal capacity should be restricted only to the extent necessary to carry out the purpose of the guardianship. *xlgholnhvoniorhnvlfphntaoh[aplnatlonprofhgxrhlntkh.rj]5hpxeolffk66 ibidch. 1mental disability advocacy center32indicator 9a finding of incapacity is based upon sufficient evidence and serves the interests of the adult.conclusion: law does not specify what evidence the court needs in order to deprive an adult of legal capacity. őere is no provision in law for the judge to weigh up whether depriving the adult of legal capacity actually serves the interests of the adult.analysis: although the court is obliged to evaluate all the evidence presented to it during the hearings,67 law fails to specify the type and quantity of evidence needed, allowing judges to rely almost exclusively on the incapacity assessment which is written by a psychiatrist. human rights standards: őis indicator looks at two elements of the incapacity determination and subsequent guardianship – the evidentiary basis submitted to the domestic court and the impact of the ruling upon the adult‘s interests. evidence must meet qualitative standards. recommendation no. r(99)4 requires that judges should see the adult personally and that an up-to-date report from a qualiűed expert must be submitted.68 őe phrase ‘qualiűed expert‘ is not deűned, but should be understood as referring to a psychiatrist or psychologist, possibly with specialized training in capacity assessment, rather than a general medical practitioner. as referred to above, the european court of human rights has already emphasized the necessity of a qualiűed expert report to determine capacity.69 in its h.f. v. slovakia ruling, the court held that statements made by the adult‘s former spouse and lay witnesses in combination with a psychiatric evaluation that was one and a half years old were not suůcient evidence for a űnding of incapacity. őe decision, therefore, not only reiterates that an expert report is necessary for states to meet their obligation under the convention, and that lay (non-professional) witnesses are not a satisfactory substitute. őe court further observed that reports must be recent in order to reěect the functional capacity of the individual at the time of the hearing. 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‘.70 to achieve this, the individual‘s circumstances must be taken into account and the protection oőered by guardianship should be weighed against any possible negative consequences. as stated in principle 5 of recommendation no. r(99)4, restriction should not be imposed ‘unless the mea-sure is necessary, taking into account the individual circumstances and needs of an civilprocedurecode,art. 7168 principle 12.69 h.f. v. slovakiaapplicationno. 547/00,judgmentofnovember8,200 principle8().human rights and guardianship in kyrgyzstan33adult.‘ for example, as employment is an important source of social interaction and self-esteem, guardianship may not be in the adult‘s best interests if, as a result of it, the right to work is restricted. such aspects should be thoroughly examined during pro-ceedings in order to meet the necessity, subsidiarity, and proportionality requirements prescribed in principles 5 and 6. indicator selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered.conclusion: legislation provides for objective criteria in the guardian selection process, but there is no suůcient regulation on the criteria evaluation. őere are no speciűc regulations according to which the adult‘s wishes and feelings need to be taken into account. analysis: guardians should be adults with full legal capacity and parental rights. selection of a guardian is supposed to be based on the person‘s moral and other personal qualities, on the ability to perform the guardian‘s duties, and the relationship between the guardian and the adult.72 őe law, however, lacks speciűc regulations on how guardianship authorities should evaluate these things, allowing guardianship authorities to ignore them. őe wishes of the adult in the selection of the guardian are taken into consideration ‘if it is possible‘,73 but legislation sheds no light on what this means and how it is to be applied. human rights standards: recommendation no. r(99)4 provides that the primary concern in assessing the suitability of a guardian should be the ability of that person to ‘safeguard and promote the adult‘s interests and welfare‘.74 it also suggests that states take steps to ensure that qualiűed guardians are available, such as creating training associations.75 őis indicator assesses whether legislation prescribes requirements for speciűc qualities or attributes necessary for an individual to be appointed as a guardian. for example, finnish legislation states that the suitability of a prospective guardian should be determined based on skill, experience and the nature and extent of the duties required.76 71 civilcode,art. 70(2). civilcode,art. 70().73 civilcode,art. 70().74 principle8(2).75 principle 17 *xarglanvklp6hrylfhv$ft )lnoang &kapthr6hftlon8noi�flaotranvoatlonprovidedbyfinlex,serviceofthefinnishgovernment.availableat:http://www.�noh[�hnoanlnaannonvht hn pgioavtaffhvvhgon0amental disability advocacy center34according to recommendation no. r(99)4, ‘the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect‘.77 őe explanatory memorandum to the recommendation warns that whilst the invaluable and irreplaceable role of relatives must be recognised and valued, the law must be aware that acute coněicts of interest may exist in some families and recognise the dangers these coněicts may present.78 finally, principle 9 of recommendation no. r(99)4 provides that respect for the past and present wishes and feelings of the adult should be ascertained and given due respect. őis principle applies to all stages of establishing and implementing guardianship, but it is particularly important in choosing the guardian. indicator 11the guardian should not have a conflict of interest with the adult, or the appearance of such a conflict. conclusion: őe legislation allows guardians to be appointed who have a coněict of interest with the adult. analysis: law does not address coněicts of interest. it is possible, for example, for psychiatric institutions to be appointed as guardians of adults in the institution,79 a situation where the guardian cannot exercise independent control and can gain űnan-cially from being the adult‘s guardian. human rights standards: coněicts between an appointed representative and the adult are not directly addressed by recommendation no. r(99)4. best practices from other countries includes france, where legislation directly provides that an ‘additional supervisory guardian‘ is appointed who, among other duties, is designated to represent the adult when his or her interests are in coněict with the guardian‘s interests.80 őe standards of practice adopted by the national guardianship association, an american membership organisation of guardians and legal professionals, address the issue of coněicts of interest between a guardian and an adult in standard 6, which states that:‘őe guardian shall avoid even the appearance of a coněict of interest or impropriety when dealing with the needs of the ward. impropriety or coněict of interest arises 77 recommendationno.r(99)principle9(2). explanatorymemorandumtorecommendationno.r(99)para. 44 ibidart. 70,para. 480 french 1title 47ltohavailablewww.legifrance.gouv.fr,human rights and guardianship in kyrgyzstan35where the guardian has some personal or agency interest that can be perceived as self-serving or adverse to the position or best interest of the ward.‘ őis document goes on to state: ‘a guardian who is not a family guardian shall not directly provide housing, medical, legal or other direct services to a ward‘.82 őe guardian has a duty to challenge inappropriate, inadequate or poor quality services from service providers on behalf of the adult. clearly, an impossible situation arises when the guardian is also the service provider, the guardian has a coněict of interest.indicator an adult has the right to appeal a finding of incapacity and/or the appointment of a guardian. conclusion: an adult has the right to appeal a űnding of incapacity and the appointment of a guardian, because all such requests must be authorised by the guardian. analysis: an adult has a right to appeal the decision on deprivation of legal capacity, even if he or she did not participated in the proceedings. őe adult may appeal the court‘s decision within 30 days of the announcement of the decision. after the decision comes into eőect after 30 days, the adult is oůcially deprived of legal capacity, and thus can only appeal the decision if the guardian agrees to do this.83 an adult can – technically – appeal the appointment of a guardian.84 however, the appeal must be made through the guardian, making this ‘right‘ an absurdity. human rights standards: őe right to appeal a decision of incapacity is an important aspect of procedural fairness and human rights safeguards, both of which are required by principle 7 of recommendation no. r(99)4. őe recommendation relies on the united nations declaration on the rights of mentally retarded persons, which states that when a person‘s rights are restricted, the procedure used for such restrictions must provide ‘proper legal safeguards against every form of abuse‘ and must be subject to ‘the right of appeal to higher authorities‘.85 a subsequent united nations resolution, the un mental illness principles, reaůrms the un‘s position and requires states to guarantee the right to appeal a decision to a higher court by the adult whose capacity national82 ibidstandard 16. civilprocedurecode,art. 136. civilcode,art. 70. undeclarationoftherightsofmentallyretardedpersons,proclaimedbygeneralassemblyresolution28(xxvi)of20december 171mental disability advocacy center36is at issue, by their personal representative or other individuals.86 legislation providing for others to appeal a decision on the adult‘s behalf can be crucial, because the adult may not have the capacity to know that there have been procedural or other violations or how to go about challenging the decision.2.6.4rights of the adult after guardianship is established (indicators 13-17)international human rights law requires domestic legislation to ensure that an indi-vidual placed under plenary or partial guardianship retains rights to make decisions in as many areas as possible, as well as the opportunity to exercise those rights. indicators 3-7 address these residual rights, including the right to vote, the right to work, the right to property, the right to marry, the right to found a family, the right to respect of his or her family life, and the right to associate. indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise political rights. conclusion: adults under guardianship are deprived of the right to exercise signiűcant political rights such as the right to vote.analysis: law deprives people deprived of legal capacity of their rights to public ser-vice,87 of the right to vote,88 to be a member of a political party,89 and to be elected.90 őe right to űle petitions, that is, the right to appeal to a public institution, is regulat-ed in the law on guarantees and freedom of access to information, and until may 2007 in the law on procedure of considering proposals, statements and appeals of citizens. although earlier these laws did not specify any restriction to be applied to people deprived of legal capacity in enjoyment of the right to petition, in may 2007 the kyrgyz parliament amended the law on procedure of considering citizens‘ ap-plications, article 4 of which now states that appeals in the interest of and on behalf of people deprived of legal capacity can be submitted by legal representatives of adults (parents or foster parents for children, and guardians for adults) as well as guardian-ship authorities. 86 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 1(6). thelawonpublicservice,art. 388 7kh.rj]89 thelawonpoliticalparties,art.6. 90 thecodeonelections,art. 3 lawonguaranteesandfreedomofaccesstoinformation,arts. 3 and 5human rights and guardianship in kyrgyzstan37human rights standards: őe right to political participation and universal suőrage has been recognised internationally in article 25 of the covenant on civil and political rights. in addition to this, article 3 of protocol to the european convention on human rights provides that states ‘undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.‘ regarding public participation and participation in the democratic process of people with mental disabilities, the council of europe has stated that ‘[s]ociety needs to reěect the diversity of its citizens and beneűt from their varied experience and knowledge. it is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities‘.92 speciűcally addressing individuals with mental disabilities, the right to autonomy and self-determination is elaborated in principle 3 of recommendation no. r(99)4, which denotes that legislative frameworks need to incorporate guardianship laws that recognise the existence of various degrees of capacity as well as the dynamic nature of capacity over time. recommendation no. r(99)4 emphasises that a measure of protection such as guardianship ‘should not automatically deprive an adult of the right to vote, or to […] make other decisions of a personal character at any time when his or her capacity permits him or her to do so‘.93 indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to work. conclusion: an adult, incapacitated by the court, is automatically deprived of the right to work.analysis: adults deprived of legal capacity are prohibited from working. and indeed employment contracts concluded with a person deprived of legal capacity must be declared null and void by the court.94 human rights standards: article 8 (right to privacy) of the european convention on human rights includes the right to work. őe european court of human rights has said that, ‘it is, after all, in the course of their working lives that the majority of people have a signiűcant, if not the greatest, opportunity of developing relationships 92 actionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinvoflht lpproylnjtkhtxaoltoiolihoiphopohwltkglvaeloltlhvln(xroph-recommendationno.(2006)5 ofthecommitteeofministersofthecouncilofeurope,para. 3 recommendationno.r(99)principle 3(2). labourcode,art.60.mental disability advocacy center38with the outside world.‘95 őe european social charter (revised) also contains pro-visions protecting the right to work.96 recommendation no. r(99)4 provides that where a measure of protection is necessary, it should be proportional to the degree of capacity of the adult and tailored to the individual circumstances and needs of the person.97 őerefore, while some restriction may be necessary in certain situations, a blanket prohibition from employment of all people under guardianship may exclude individuals from participating in certain realms of life and activities despite their ca-pacity to do so.98indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to property.conclusion: an incapacitated adult is automatically deprived of the opportunity to exercise the right to manage property.analysis: legislation restricts adults who have been deprived of their legal capacity of the right to manage property. law speciűes that adults deprived of legal capacity may not exercise property rights directly, only through the guardian.99 human rights standards: őe right to property includes the ability of individuals to manage űnances, complete transactions and enter legally binding contracts. a guardianship system that automatically exclude individuals from managing any aspect of their űnances undermines the adult‘s autonomy and dignity. such a system does not reěect the reality, which is that functional capacity often ěuctuates, and therefore decisions should be tailor made. őe right to use and manage one‘s own property is protected in article of protocol no. to the european convention on human rights, which reads, in relevant part:‘every natural or legal person is entitled to the peaceful enjoyment of his possessions. no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.‘ 95 niemietz v. germany$ppolfatlon1omxgjphnt’hfhpehr $-%99 1ehrrpara29.96 article 15(2)oftheeuropeansocialcharter(revised),strasbourg, 3 may 1996. recommendationno.r(99)principle6. $otkoxjk.rjl]vtanglvaelolt6phfl�faookttp hxr-oh[hxropahxlh[8rl6hrylexuriserv.do?uri=celex:l99 civilcode,art.(2).human rights and guardianship in kyrgyzstan39recommendation no. r(99)4 follows this sentiment by recommending that ‘[w]henever possible the adult should be enabled to enter into legally eőective transac-tions of an everyday nature‘.00 őe council of europe returned to this theme in its 2006 ‘action plan to promote the rights and full participation of people with disabili-ties in society,‘ which listed concrete measures to be taken by member states. őese measures included action ‘to ensure the equal right of persons with disabilities to own and inherit property, providing legal protection to manage their assets on an equal basis to others‘.indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to marry, to found a family, and to respect of family life. conclusion: adults who have been deprived of their legal capacity are automatically deprived of the opportunity to exercise the right to marry, to found a family, and to respect of their family life.analysis: kyrgyz law prohibits marriage if one of the parties has been deprived of legal capacity.02 such a marriage can be dissolved by means of an application by the guardian.03 in aůliation cases the identiűcation of paternity in which an adult deprived of his or her legal capacity is involved is allowed only with the consent of the guardian or the guardianship authority.04 adults deprived of legal capacity are also not allowed to be foster parents, and may be denied the right to raise their own children.05 children can be automatically removed from a parent deprived of legal capacity, and be placed for adoption without the parent‘s consent.06human rights standards: article 8 of the european convention on human rights guarantees the right to respect for private and family life, home and correspondence. őis imposes on states a negative obligation not to interfere with, as well as a positive 00 recommendationno.r(99)principle 3). councilofeurope,actionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinsociety:improvingthequalityoflifeofpeoplewithdisabilitiesineurope-5hfopphngatlon para ylll02 familycode,art. 15 ibidarts. 1720. ibidart. 51). ibidart. 13306 ibidart. 136.mental disability advocacy centerobligation to respect a person‘s private and family life. őere are similar convention obligations to respect a person‘s right to marry and found a family under article 2, which reads, ‘[m]en and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right.‘ őe un has also addressed this issue. rule 9 of the un standard rules on the equalization of opportunities for persons with disabilities contains strong language on the rights of people with disabilities to family life and personal integrity, aůrming that ‘states should promote the full participation of persons with disabilities in family life. őey should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood‘,07 and that ‘[p]ersons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood‘.08indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to associate.conclusion: adults deprived of legal capacity are automatically deprived of their right to associate, or to establish unions, but are given the right to be a member of non-proűt organisations.analysis: legislation speciűes that founders of non-proűt organisations09 should be legal entities and individuals with full legal capacity.11 őis law contains a clear prohibition of adults deprived of legal capacity from establishing an association,111 but the law is unclear about establishing public foundations in that it uses the term legally ‘able‘ (not ‘capable‘, which means with full legal capacity).11 law also prohibits adults deprived of legal capacity from establishing trade unions.11 adults deprived of legal capacity may be members of non-proűt organisations11 human rights standards: őe right to associate can be especially important for people with disabilities, as membership in advocacy and peer support groups can foster ungeneralassembly,unstandardrulesontheequalizationofopportunitiesforpersonswithdisabilities,a/res/8/96,datedmarch 4 1996,rule9.08 ibidrule9(2).09 1on-pro�torjanl]atlonlvaooohjaohntltlhvtkhpalnpxrpovhoiwklfklvnotrhoathgwltkpro�tlnjangwklfkgonotvkarhpro�tharnlnjehtwhhntkhphpehrv11 lawon1on-3ro�t2rjanl]atlonv$rt*hnhraogh�nltlonv111 publicassociationisvoluntaryassociationofcitizens,associatedonthebasiscommonnessoitkhlrlnthrhvtviorvatlviaftlonvplrltxaoangotkhrnon-pathrlaonhhgvlaw on non-pro�t organizations, art. 2.11 lawon1on-3ro�t2rjanl]atlonvart113 lawontradeunions,art.2.114 ibidart*hnhraogh�nltlonvhuman rights and guardianship in kyrgyzstanskills development, empowerment and autonomy. advocacy associations in particular may give individuals a collective political voice to lobby for legislative protection. a prohibition from associating with others to pursue a common aim engages article 11of the european convention on human rights, which states: ‘everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.‘ any restrictions on these rights must be clearly stated in law and necessary in a democratic society for one of the listed grounds in article 11(2), such as for the protection of health or morals or for the protection of the rights and freedoms of others. őe european court of human rights has conűrmed that ‘an inherent part of the right set forth in article 11‘ is the right to form associations.11 it is diůcult even to imagine a scenario in which restricting the rights of people under guardianship to associate would be ‘necessary in a democratic society.‘ a blanket ban on doing so almost certainly violates binding international human rights law. 2.6.5obligations of the guardian after guardianship is established (indicators 18-25)in order to ensure that an adult under guardianship is treated with dignity and respect, and has the opportunity to maximize independence and self-determination, the state needs to establish workable systems to review the responsibilities, supervision and accountability of guardians. indicators 8-25 address these responsibilities of guardians.indicator a person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. conclusion: deprivation of legal capacity restricts an adult in making decision in all areas of his or her life. őere is no partial guardianship in kyrgyzstan. analysis: kyrgyz legislation allows for only plenary guardianship. őus, an incapaci-tated adult who is placed under guardianship is restricted in making decisions practi-cally in all spheres of life. human rights standards: as noted, international human rights law demands a least-restrictive approach to guardianship. őis approach which maximises self-determination and autonomy, basic principles of human rights which permeate recommendation no. r(99)4. for example, the document recommends that ‘[t]he range of measures of protection should include those which are limited to one speciűc 115 sidiropoulos v. greece$ppolfatlon1o mxgjphnt-xo (+55mental disability advocacy center42act without requiring the appointment of a representative or a representative with continuing powers‘.11 principle 3 recommends that legislation should allow for a maximum preservation of capacity:‘őe legislative framework should, so far as possible, recognise that diőerent degrees of incapacity may exist and that incapacity may vary from time to time. accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. however, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.‘in particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health űeld, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.consideration should be given to legal arrangements whereby, even when representation in a particular area is necessary, the adult may be permitted, with the representative‘s consent, to undertake speciűc acts or acts in a speciűc area.whenever possible the adult should be enabled to enter into legally eőective transactions of an everyday nature.a best practice example could be from france, where legislation successfully incor-porates this principle. when establishing guardianship in france, the judge may list transactions that an adult may undertake independent of the guardian. a medical expert must be consulted when the judge assesses those tasks the decision-making of which the adult will retain.11 another approach – encouraging the adult‘s participa-tion – is found in the uniform guardianship act of the us, which provides guidance on how to incorporate this principle into legislation. in the section entitled ‘guardian‘s duties,‘ the model legislation suggests: ‘a guardian shall exercise authority only as necessitated by the ward‘s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward‘s own behalf, and develop or regain the capacity to manage the ward‘s personal aőairs. a guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian.‘11 in this paradigm, the guardian is responsible for ensuring the adult‘s participation and opportunity to act whenever possible.11 recommendationno.r(99)principle2().117 )rhnfk&lylo&oghopflt$rtlfoh8noi�flaotranvoatlonproylghgelhjliranfhvhrylfhofthefrenchgovernment.availableat:www.legifrance.gouv.fr(lastaccessed 1 may200).11 uniformguardianshipandprotectiveproceedingsact99),art. 3para. 313(a).human rights and guardianship in kyrgyzstan43indicator an adult subject to guardianship must be consulted about major decisions, and have his/her wishes adhered to whenever possible.conclusion: őere are no legal obligations for a guardian to consult the adult con-cerning decisions and actions.analysis: kyrgyz law does not require that the wishes and feelings of an adult under guardianship should be considered when the guardian makes a decision or takes action on behalf of the adult. őe only case when the wishes of the adult can be considered, if it is possible, is in the procedure appointing a guardian.11 according to the civil code, the guardian can make decisions and take actions without the consent of the adult or the guardianship authority in matters related to the everyday life of the adult. however, any decisions related to property should be made only with the consent of the guardianship authority. human rights standards: it is important for legislation to expressly give the adult a role in decision-making as it provides both a benchmark to evaluate the guardian‘s performance and a judicially enforceable standard. a good practice example would be finland, whose legislation incorporates this principle by requiring that guardians ask an adult‘s opinion in connection with decisions within the scope of the guardian‘s duties.20 recommendation no. r(99)4 speciűes that when taking a decision, ‘the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect‘. őis principle suggests that ‘a person representing or assisting an incapable adult should give him or her adequate information, whenever this is possible and appropriate, in particular concerning any major decision aőecting him or her, so that he or she may express a view‘.22 principle 2 of the recommendation goes further, recommending that when trying to űnd the best solution to an individual‘s circumstances, ‘[c]onsideration should be given to the inclusion of measures under which the appointed person acts jointly with the adult concerned, and of measures involving the appointment of more than one representative‘. 11 civilcode,art. 70.20 seethefinnishguardianshipservicesact, 442/99,section 43entitledhearingthewardwhichreads,‘beforetheguardianmakesdecisioninmatterfallingwithinhis/hertask,he/sheshallinquiretheopinionoftheward,ifthematteristobedeemedimportantfromtheward‘spointofviewandifthehearingcanbearrangedwithoutconsiderablelnfonyhnlhnfh¶8noi�flaotranvoatlonproylghge),1l(;vhrylfhoitkh)lnnlvk*oyhrnphnt$yaloaeohat kttp www�noh[�hnoanlnaannonvht hn pgivisitedonmay 1200thisprovisionisnotcitedas‘bestpractice‘examplebecausethefinnishlegislationunfortunatelycontainsbroadlistofderogations. principle9().22 principle9(). principle2(6).mental disability advocacy center44indicator 20the scope of authority and obligations of the guardian are clearly defined and limited to those areas in which the adult subject to guardianship needs assistance.conclusion: after an adult has been deprived of his or her legal capacity and placed under guardianship, there is no limitation of the scope of authority of the guardian. analysis: an individual appointed as guardian for an adult deprived of legal capacity is by law empowered to take all decisions on behalf of that adult. őe guardian decides all important matters, such as where the adult will be live (including detaining the adult in a mental health or social care institution), whether and where the adult should be educated, whether and where the adult should be treated for medical or mental health conditions, what leisure activities the adult can engage in and with whom the adult may socialise. human rights standards: domestic legislation should provide clear direction to the authority determining capacity to deűne the scope of the individual guardian‘s obligations in light of the particular adult‘s capacity. recommendation no. r(99)4 encourages countries to take a ěexible approach, noting that ‘[t]he measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be suůcient, in scope or ěexibility, to enable a suitable legal response to be made to diőerent degrees of incapacity and various situations‘.24 őe recommendation further advises that: ‘őe legislative framework should, so far as possible, recognise that diőerent degrees of incapacity may exist and that incapacity may vary from time to time. accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. however, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.‘25a best practice example of this approach is the finnish guardianship act, which speciűes that ‘the task of the guardian may be restricted to cover only a given transaction, matter, or property‘.26 even within a particular matter, the finnish legislation safeguards the interests of the adult by prohibiting guardians from a number of speciűed activities including conveying or purchasing property,27 consent to marriage or adoption, or make or revoke a will, absent speciűc permission of the court.28 principle2(). principle 3).26 thefinnishguardianshipservicesact, 442/99,para.8(). ibidpara. 3428 ibid 442/99,para.29.human rights and guardianship in kyrgyzstan45indicator 2a guardian is obliged to promote the interest, welfare and independence of the adult under guardianship by seeking the least restrictive alternatives in living arrangements, endeavouring to allow the adult to live in the community.conclusion: a guardian is not obliged to promote the interest, welfare and indepen-dence of an adult by seeking the least restrictive alternatives in living arrangements.analysis: while the legislation on children‘s guardians contains a requirement to live together with the child, the law is silent concerning the obligations of guardians appointed for adults. őe guardian can determine where the adult should live, and there is no requirement in the law according to which the guardian must seek the least restrictive living alternative. legislation speciűes obligations of the guardian that are related only to the care of the adult and his or her medical treatment. őe law mandates guardianship authorities to inspect the social adaptation of the adult.29 őe guardianship authority‘s oůcer writes a report, and if there are shortcomings the report oőers recommendations to overcome the problems. human rights standards: őis indicator tests the often-intimate connection between guardianship and institutionalisation. őe right to live in the community, and therefore to have a life free from social exclusion and discrimination, is of utmost importance in every country and is recognised in international law. őe united nations convention on the rights of persons with disabilities, which is set to be adopted by the un general assembly as this report went to print, sets out this right in draft article 9 the following:article 19 – living independently and being included in the community states parties to this convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take eőective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.29 guardianshiplaw,partvi.mental disability advocacy center46community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.30őe 99 un mental illness principles provide that ‘[e]very person with a mental illness shall have the right to live and work, to the extent possible, in the community‘. each person has ‘the right to be treated and cared for, as far as possible, in the community in which he or she lives‘.32 in addition to this, the 2006 council of europe disability action plan sets out a european-wide policy framework on disability for the next decade calling on countries ‘to ensure community-based quality service provision and alternative housing models, which enable a move from institution-based care to community living‘.33 although living arrangements are not expressly addressed in recommendation no. r(99)4, the principle of proportionality dictates that, in all decisions, a course should be adopted that least restricts the adult‘s rights and freedom while providing adequate protection.34 indicator 22the guardian must manage the assets of the adult in a manner that benefits the adult under guardianship. conclusion: őe kyrgyz legislation requires that the guardian should manage the assets of the adult in a manner that beneűts the adult.analysis: law speciűes that the guardian must manage the adult‘s assets in a manner that beneűts the adult.35 őe adult‘s income should be spent in such a way that beneűts and satisűes the needs of the adult. legislation speciűes that the guardianship authority should give its consent before the guardian conducts property transactions, but the law is unclear on both the form of consent and on the level of property transaction for which guardianship authority consent it needed.36 13 reportoftheadhoccommitteeoncomprehensiveandintegralinternationalconventionontheprotectionandpromotionoftherightsanddignityofpersonswith’lvaeloltlhv(ljktkvhvvlon1hw
