guardianshipanalysis of law, policyand practiceand human rightsin hungarywe 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 hungaryanalysis of law, policy and practice2007human rights and guardianship in hungary3contentsexecutive 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 hungary162.1introduction162.2demographic and social landscape of people with disabilities in hungary162.3hungary‘s legal system172.4guardianship law in hungary192.5hungary‘s two-step guardianship/incapacity process192.6human-rights based assessment of hungary‘s legislation21 2.6.1principles running throughout legal frameworks (indicator 1)22 2.6.2 procedural rights during guardianship proceedings (indicators 2-7)24 2.6.3 quality of evidence provided to the court in incapacity cases (indicators 8-12)34 2.6.4 rights of the adult after guardianship is established (indicators 13-17)41 2.6.5 obligations of the guardian after guardianship is established (indicators 18-25)47 2.6.6 necessity of guardianship and alternatives (indicators 26-29)593.guardianship practice in hungary653.1aims and objectives653.2methodology653.3research findings of guardianship in practice67 3.3.1 the practice of the guardianship process68 3.3.2 interviews…………………………………………………………………………….713.4general observations and conclusions753.5general comments and the need for further research82mental disability advocacy center4nneesa:glossary of terminology85b:summary table of the indicators87c:protocol for researchers on protection of research data and participants90d:list of interviews…………………………………………………………………………………..93e:data gathering sheets95human rights and guardianship in hungary5xeutve mmarőis report is the űrst work of its kind to look in any depth into laws and practice relating to guardianship in hungary. it was possible to obtain a detailed understanding of legislation impacting on the guardianship process. however, the opportunity to gain a comprehensive understanding of actual practice was denied to mdac. őe reason was quite simple: access to vital sources of information was refused on the grounds of conűdentiality. consequently, this report oőers only an insight, albeit an important insight, into how the guardianship process fully works. more speciűcally, although hungary adopted a national disability programme in 2006, much of its guardianship regulation is based in laws dating from the 1950s. much remains to be done in this area to bring such law in line with current human rights standards. it is these standards, and the compliance of hungary with them, in legislation and in practice that form the focus of this report. őe legal and moral imperatives on hungary to amend its guardianship laws are demonstrated in this report, a report that is particularly timely in view of the recent adoption of the un convention on the rights of persons with disabilities, which hungary has signed.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 hungarian constitution speciűcally provides for respect for the human rights of people with disabilities, 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 re ected in the practice of the process itself. indeed, the main űndings of the report reveal that hungary is failing in its obligation to protect the rights of people under guardianship, indicating that reforms are urgently required. őe most important of these űndings are: conventionontherightsofpersonswithdisabilities,adoptedbytheungeneralassemblyondecember2006,refa/6/611art. 12.mental disability advocacy center6őere are 66,000 adults who are deprived of legal capacity in hungary. őis represents approximately 0.83% of the adult population. two thirds of adults under guardianship are under plenary (all encompassing) guardianship or ‘partial guardianship with general limitations‘. őese people 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 associate freely, and to access courts. even if not speciűcally deprived of certain rights, a lack of procedural capacity ensures their inability to enforce them.guardianship is hungary‘s only legal response to people who require assistance to make decisions. őere are no such alternatives available 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 insucient access to adequate advice and representation to assist them through it. professionals involved in the guardianship process have little understanding of its human rights implications. őere are no alternatives to guardianship (for example, advance directives, sup-ported decision-making) for people with disabilities who need support in making certain decisions. despite the constraints imposed upon mdac‘s research, the commitment of many professionals involved in the guardianship process was notable. mdac urges the hungarian government to utilise this commitment fully and to build reform of all of its laws that have an impact upon guardianship. őis report sets out a series of principled recommendations designed to improve guardianship law and practice and thus better respect the human rights of people with disabilities in hungary. mdac speciűcally urges the government to implement the 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. at the time that this report was produced (may 2007) mdac was involved in a coalition of hungarian ngos which is encouraging the government to reform the civil code, and in the course of this project is making speciűc and detailed recommendations. for more details see mdac‘s website, www.mdac.info. human rights and guardianship in hungary7remmendaons őis report suggests that hungarian guardianship law and practice fails to meet a number of the basic requirements of the international law of human rights. őe clear implication of this failure is that the lives of over 66,000 people currently under guardianship in hungary2 could be signiűcantly improved. őis will only happen if the government commits to further reform the legislative landscape and support those involved in implementing the reforms. with this in mind, mdac below makes a number of recommendations to the hungarian government, which – if followed – would bring the law and practice in line with basic international standards. at the time this report was produced (may 2007) mdac was involved in a coalition of hungarian ngos which are encouraging the government to reform the civil code, and in the course of this project this civil society coalition is making more detailed recommendations, which can be found on mdac‘s website www.mdac.info.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 hungarian government should require the use of least restrictive alternatives which promote the independence of, and also protect the adult by:creating supported decision-making services. őe establishment of such services is an existing obligation under the 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. informationprovidedbyhungariannationalcouncilofjusticeinlettertomdacdated26january2006.–––––mental disability advocacy center8providing the right to create legally-binding advance directives (in which an adult speciűes his or her wishes in case of future functional incapacity) and powers of attorney (where an adult speciűes a person to take decisions in case of future functional incapacity) (indicator 26).abolishing plenary guardianship, as well as ‘partial guardianship with general limitations‘ (indicators 20 and 27).abolishing any exceptions to regular reviews of guardianship (indicator 28).requiring that guardianship is used only as a last resort (indicator 26).2. maximise autonomy: őe hungarian government should ensure that adults subject to guardianship retain the right to make decisions for themselves in all areas of life where they have functional capacity by: removing the automatic ban currently placed on people under guardianship of exercising such 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 13-17).listing and expanding the areas of life in which an adult subject to partial guardianship retains capacity to make decisions for him- or herself at all times. őe legislation is currently unclear and the list risks being read as exhaustive (indicator 20).requiring guardians to seek the least restrictive living arrangements for adults (indicator 21).3.improve procedures: őe hungarian government should provide sucient guarantees to ensure the right of adults to meaningful participation in the entire guardianship process – from the start of the procedure and for the time the adult is under guardianship by:ensuring state-funded legal representation during all guardianship procedures, including appeals. law should provide for regular legal representation in guardianship cases, with at least the minimum standard that is provided in other areas of law (such as criminal law and mental health law) (indicator 4).introducing trainings 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).clarifying and expanding the role of case guardians, and providing eőective training on their duties (indicator 4). requiring guardians to regularly visit all adults under their care, and to discuss all relevant issues with them. in the event of the adult not being able to express his or her wishes in such a manner that follows the adult‘s previously known wishes and are in line with the adult‘s known belief system and life narrative (indicator 23). removing the option of detaining adults for determining incapacity (indicator 5).human rights and guardianship in hungary9ensuring consistency in legislation so that it is possible for an adult to apply for modiűcation of guardianship at any time (indicator 29).providing a process which ensures that the adult has the right to challenge the appointed guardian, even if he or she is a so-called ‘professional guardian‘ (indicator 12).4.prevent abuse: őe hungarian 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 con icts with the interests of the subject adult from serving as guardian (indicators 10 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). viewing 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 deal-ings with guardianship oces 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 oce rejects an adult‘s request to obtain copies of documentation relating to his/her guardianship) (indicators 21, 25, 29).obliging guardianship oces of local authorities to establish an eőective and accessible complaints system which adults under guardianship can directly access; and obliging such guardianship oces to provide information in an understandable format to all adults under guardianship (indicator 25).implementing these recommendations would signiűcantly improve the quality of the hungarian guardianship system by strengthening the protection of the human rights and interests of adults subject to guardianship. as noted in this report, mdac is part of a civil society coalition which is providing a series of detailed recommendations to the hungarian government to improve the civil code. mdac with its ngo partners looks forward to engaging with the hungarian 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. inton1.1guardianshipőis 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.3 őe legal mechanism of guardianship exists in some form in almost every jurisdiction in the world. it is widely accepted as a means of protecting individuals who are deemed incapable of managing their personal aőairs as a result of a mental health problem (psycho-social disability), intellectual disability, degenerative disease or profound physical or sensory disability. guardianship is usually established through court proceedings, or a combination of court and administrative processes, during which adults are found to either partially or completely lack capacity to make decisions on their own behalf. őe outcome of such űndings could be that an adult is ‘legally incapacitated‘.4 őe court (or an administrative authority) then appoints a guardian to act on that adult‘s behalf. őe guardian‘s speciűc authority is deűned either by law or by court order. generally, guardians have both decision-making authority over the adult and an obligation to protect the adult‘s welfare. őe eőectiveness of guardianship as an institution heavily depends on certain personal qualities of each guardian, such as their competence, diligence and conscientiousness.guardianship has a profound eőect on the lives of those placed under its 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‘s 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 ecient accountability system.as the global disability rights movement gains momentum, the guardianship model as a means of providing protection and assistance to people with mental disabilities, is theenglishlanguageterminologyusedthroughoutthisreportwasarrivedataftermuchdebate.presumably,therewillbe,oralreadyaresimilardebatesinotherlanguages.tohelpthereaderunderstandtheterminologyinthesereports,briefglossaryoftermscanbefoundinannexa. throughoutthisreport,mdacusestheterm‘legalcapacity’,asde�nedintheglossaryatp.84.differentjurisdictionsusedifferentterminologytode�nethelegalinabilitytoactonone‘sownbehalf,suchas,forinstance,‘incapable‘or‘incompetent‘.somelawsprovidefor�ndingofpartialorlimitedlegalcapacity.human rights and guardianship in hungary11coming under increased criticism. őe principal criticism is its failure to provide adequate due process protections in establishing and administering guardianship and ensuring the right of self-determination.5 in a small number of jurisdictions, such as 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.6 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), which hungary signed on 30 march 2007, legal capacity, a concept integral to guardianship, is speciűcally dealt with in article 12, which states: equal recognition before the law1.states parties rearm that persons with disabilities have the right to recognition everywhere as persons before the law. states parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3.states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.4.states parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and eőective safeguards to prevent abuse in accordance with international human rights law. such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of con ict of interest and undue in uence, 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 bank loans, mortgages and other forms of űnancial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. canadianassociationforcommunityliving(cacl)report.taskforceonalternativestoguardianship,august 1992,availableat:http://www.worldenable.net/rights/adhocguardianship.htm. seetheglossaryatp.85forde�nitionofsupporteddecision-making.mental disability advocacy centerőese provisions directly implicate guardianship. further they add credence to mdac‘s call for an immediate paradigm shift away from the arbitrary removal of the human rights of those under guardianship, towards the adoption of national policies and laws which will make the provisions of the disability convention, and those in article 12 in particular, a reality. it is mdac‘s wish and intention that this report will in uence both the direction and speed of this paradigm shift in hungary. 1.2 researching guardianship in many of the countries where mdac works, guardianship laws have remained rela-tively unchanged for decades. however, they are likely to undergo substantial reform as countries continue to bring their legislation in conformity with international hu-man rights standards, including the un disability convention. to highlight guard-ianship 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 aőects 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 (bul-garia), petar sardeli (croatia), zuzana benešová (czech republic), nina dadalauri (georgia), dániel kaderják (hungary, a senior law student who also served as project assistant), meder dastanbekov (kyrgyzstan), anna smorgunova (russia), and vidan hadi-vidanovi (serbia).human rights and guardianship in hungarybeginning 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. robert m. gordon, director and professor, school of criminology, simon fraser university, vancouver, canada;dr. georg høyer, professor of community medicine, university of tromsø, norway;dr. krassimir kanev, chairman, bulgarian helsinki committee, soűa, bulgaria;mr. mark kelly, director, irish council for civil liberties, dublin, ireland; anddr. jill peay, professor of law, london school of economics, london, uk.mdac would like to extend its warmest gratitude to the guardianship advisory board for the individual and collective contributions they have made to this project. any errors remain solely those of mdac. mdac‘s former research and development director marit rasmussen developed and managed this project for over two years. interns priscilla adams, jill diamond, jill roche and nicholas tsang helped with background research and istván fenyvesi designed and laid out the reports. research in hungary was carried out by dániel kaderják who wrote the űrst draft. gábor gombos, jan fiala, csilla budai and boglárka benkó commented on later stages, and sarah green, jill peay and oliver lewis produced the űnal report.1.4 method1.4.1stage one: legislative reviewstage one of the research, of which the results for hungary 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 guardianship and the rights of the parties to such procedures.documenting the rights of the person alleged to lack capacity throughout the guardianship process.assessing 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.mental disability advocacy center1.4.2stage two: collection of data from the fieldstage two, the results for hungary of which are found in section 3 of this report, focuses on a de facto7 examination of guardianship practices within each target country by observing court hearings, reviewing court űles and, to the extent applicable and possible, observing guardianship authority proceedings and reviewing guardianship authority űles.because certain information is available only from those who participate in guardianship processes, mdac has attempted to follow cases, observe court and guardianship authority hearings, review case űles, and conduct interviews. őis manner of data collection gives an opportunity to capture a snapshot of guardian-ship practices. ethical concerns are raised when conducting research that includes interviews of participants, 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 conűdentiality 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.8 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 the recommendation‘s explanatory memorandum,9 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 ‘actual;existinginfact;havingeffecteventhoughnotformallyorlegallyrecognized.‘black‘s law dictionary(west8thed.200). seeannexfortable-summaryofall29indicators. seethefulltextofthememorandumathttps://wcd.coe.int/viewdoc.jsp?id=3.human rights and guardianship in hungaryeuropean 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‘,10 such as recommendation no. r(99)4.mdac‘s indicators capture basic safeguards necessary for a person-centred guardianship 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. ‘softlaw‘referstorules,recommendations,guidelinesorbroadprinciplesthatwhilenotstrictlylegallybindingarenonethelesslegallysigni�cant.black’slawdictionary(8thed.200).softlawimpliescertaindegreeofpoliticalandmoralcommitmentonthepartofstatesandisusefultoolforinterpretingexistinglegallybindingnorms.recommendationsofthecommitteeofministersofthecouncilofeuropearesoftlaw;however,thecommitteeisempoweredtoaskmemberstatestoinformitoftheactiontakenbythemonrecommendations,therebygivingtherecommendationssigni�cantpoliticalforce.mental disability advocacy center. guardianship l policy n hungar.1introductionhungary is a central european country with a population of approximately 10 million people.11 its twentieth century history was rather eventful, including the collapse of the austro-hungarian empire during world war i, the communist rule under which hungary fell following world war ii, and the 1956 uprising which was suppressed by the soviet army. hungary held its űrst multiparty elections in 1990 and promptly launched a free market economy. it joined nato in 1999 and the european union in 2004. 2 demographic and ocial andscape of eople with disabilities in hungaryőe number of people with disabilities was assessed at the 1990 and at the 2001 censuses. in 2001, the census identiűed 577,000 people with disabilities, accounting for 5.7% of the population. őis data, according to the government‘s central statistical oce, probably underestimates the real number of people with disabilities.12people with physical disabilities represented the largest proportion (43.6%) of people with disabilities, while the proportion of those with intellectual disabilities was approximately 10%.13 22% of people identiűed as having a disability lived alone, 57% with another person without a disability, and just under 11% with three or more people. nearly 8% of all persons with disabilities reside long-term in institutions.14őe 2001 census identiűed 62,256 adults as living in long-term social care institutions.15 of those, some 37,472 were in social institutions for elderly people. homes for adults with intellectual disabilities accommodated approximately 14,483 adults, while another 7,540 adults were in homes for people with psycho-social (mental health) 11 theexact�gureprovidedbythecentralstatisticsof�cewas10,006,835peopleasofaugust200(personalcommunication) resolutionoftheparliamentonthenewnationalprogrammeondisabilityaffairs,chapterii,presentationofthesocialsituationofpeoplewithdisabilities, 10/2006(ii.16).onfebruary16,baseduponsection26ofactxxviof1998onrightsandequalopportunitiesforpeoplewithdisabilities.13 ibid.14 ibid.15 census2001,centralstatisticsof�ce,see:http://www.nepszamlalas.hu/hun/kotetek/08/(accessed 1 may200).human rights and guardianship in hungarydisabilities. őere were 1,339 adults in institutions for people with pathological addictions and 1,422 in institutions for homeless people.16 in 2001 the hungarian ministry of justice estimated the number of people under guardianship at 35,000 people,17 yet by 2006 that number had nearly doubled, rising to 66,203.18 research carried out in 2001 revealed that in 22 of the 52 psychiatric social care institutions in existence at that time,19 all of the residents were under guardianship. in only four of the institutions were less than 80% of the residents placed under guardianship.20it is of particular note that the hungarian central statistics oce could not provide mdac with data regarding the number of people under guardianship. nor could it provide data about their living conditions or their gender distribution. 3 hungary‘s egal ystemsince the collapse of the ‘iron curtain‘ in 1989, hungary has been an independent and democratic parliamentary republic, whose revised constitution came into force on 23 october 1989. hungary has a civil law system. courts are independent from the government and directly interpret the legislation. generally, court decisions are not binding on lower courts, although certain decisions of the supreme court are in fact binding on all lower courts. őe most important sources of hungarian law are acts of parliament, governmental and ministerial decrees, and decrees issued by local governments. hungary has ratiűed many international human rights treaties and conventions: the european convention on human rights,21 the convention on the rights of the child,22 the international covenant on civil and political rights,23 the international covenant on economic, 16 ibid.17 katalinmakai,ministryofjustice,asquotedinki a kompetens?(translatedaswho is competent?reportofround-tablepublishedbythehungariancivillibertiesunion,may200p. 39. informationprovidedbyhungariannationalcouncilofjusticeinlettertomdacdated26january2006.thisletterfurtherindicatedthat 40,8wereunderplenaryguardianship,9,202wereunderpartialguardianship,andthetypeofguardianshipfor6,89peoplewasunknown.letteron�lewithmdac. thetotalnumberofsocialcarehomeslistedwiththecentralstatisticsof�ceis54.thediscrepancyislikelytobetheresultofvaryingadministrativede�nitionsofwhatconstitutesdifferentinstitutions.20 pszichiátriaiérdekvédelmifórum(mentalhealthinterestforum),the human rights of patients in social care homes for mentally illenglishtranslation,budapest,200 rati�edonnovember1992.22 rati�edonoctober1991. rati�edonseptember1988.mental disability advocacy centersocial and cultural rights,24 the convention on the elimination of all forms of discrimination against women,25 the european social charter (revised),26 and the discrimination (employment and occupation) convention – ilo 111.27 in 2006 the parliament unanimously adopted a new national disability programme for the years 2007-2013.28 őis sets governmental policy to create law and develop programs, including an action plan which includes the identiűcation of tasks, functions, responsible bodies and allocation of resources. őe government must report to the parliament every two years on progress towards fulűlment of the programme goals. disabled people‘s organisations have a statutory right to participate in developing the action plan. őe programme places emphasis on, among others, the following important principle: őe principle of protecting personal rights, and the protection of the (special) rights of people with disabilities that they are entitled to, as well as the principle of supported decision-making must prevail in all general rules and regulations (e.g. guardianship, caretaking). őe principle of supported decision-making, as against decisions made by professionals instead of people with disabilities, means that people with disabilities are supported in their own decision-making depending on their individual capacity to some or to full extent, covering all possibilities. in order to make use of this principle, the government must help people with disabilities by providing the necessary resources to create a network for supported decision-making. besides the ‘programme elements‘ necessary for exercising rights, the programme must be monitored, rights must be familiarized and explained, legal protection techniques must be promoted, and institutions protecting rights must be enhanced.29separate chapters of the programme deal with the issues of improvement of the quality of life for people with disabilities, putting an emphasis on the importance living outside institutions and promoting the active participation of people with disabilities in social life.30 according to the programme, a mid-term action plan was to be created by the government and submitted to parliament by 31 august 2006. at the time mdac went to press with this report (end of july 2007), this had not occurred.31 rati�edon17january1974. rati�edon22december1980.26 rati�edonoctober2004. rati�edon20june1961.28 op.cit.29 op.cit,chapteri.englishversionavailableat:http://www.szmm.gov.hu/main.php?folderid=29 op.cit.31 itshouldbenotedthatthereiscontroversyatthegovernmentallevelastowhetherthisresolutioniscurrentlyinforceornot.human rights and guardianship in hungary4 guardianship aw in hungarybefore the nineteenth century, legislation in hungary contained references only to people with intellectual disabilities and only in the area of property law. in 1872, the power of the court was separated from that of the guardianship authority. in 1877, the law placed guardianship cases under the competence of the public administration network, leaving only a few issues to be determined by courts. őe 1877 law also speciűed certain obligations of the guardian. a signiűcant proportion of issues relating to capacity and guardianship32 are regulated under the 1959 civil code33 and the 1952 civil procedure code,34 which have undergone some amendments, most notably in 2001. additional relevant laws aőecting guardianship that are currently in force include the constitution,35 as well as the act on the protection of children and the administration of tutelage,36 the governmental decree on guardianship authorities and child protection and guardianship procedures,37 the marriage, family and tutelage act,38 and the act on the general provisions of the public administrative procedures and services.39 5 hungary‘s wo-tep guardianship/incapacity rocesshungarian law divides responsibilities for the process of determining capacity of adults from the appointment and oversight of the guardianship relationship between two entities: the courts (which make capacity determinations) and guardianship authorities (which are responsible for appointing guardians and overseeing established guardianships). guardianship authorities are the executive agencies within local and regional governments whose work is regulated in part by all of the above-mentioned laws.40 őe jurisdiction of guardianship authorities extends to various matters involving children historicalbackgroundtakenfromtrainingmaterialsforprofessionalguardians,p.7-11,presentedbythecapitalguardianshipauthority,budapest,may2-5,2005.33 act 4 of 1onthecivilcode.34 act 3 of 1onthecivilprocedure(hereinaftercalledthecivilprocedurecode).35 act20of 1ontheconstitutionoftherepublicofhungary(hereinaftercalledtheconstitution). act 31 of 1997 ontheprotectionofchildrenandtheadministrationoftutelage.(forpurposesofthisreportmdacusestheterm‘guardianship‘ratherthan‘tutelage‘.)37 governmentaldecreeonguardianshipauthoritiesandchildprotectionandguardianshipprocedures.149/1997(ix.10.) act 4 of 1onmarriage,familyandtutelage. act 15of2004 onthegeneralprovisionsofthepublicadministrativeproceduresandservices. therebudapest‘sadditionally,county/capitalmental disability advocacy centerand family issues as well as the authority to initiate the procedure of placing adults with mental disabilities under guardianship.41 in fact, any individual can request that the guardianship authority initiate an investigation into the need for the guardianship of any other person. while investigations are discretionary, the guardianship authority is obliged to initiate the guardianship procedure once it is satisűed that placement of a person under guardianship is ‘necessary‘.42őe civil code states that ‘everyone has full capacity [if his/her capacity is not limited or unlesss his/her capacity is limited] or abrogated by law.‘43 őe law further provides that legal capacity may be limited or abrogated only by a court. őis is the űrst step towards placement under guardianship. őe process begins when a person empowered by law or the guardianship authority, űles an application with the court seeking an order to declare that that the adult has limited or no capacity.44 after an application has been űled with the court, the court will conduct a hearing on the evidence and make a decision. őe adult is presumed to have capacity throughout the court proceedings and therefore is entitled to all the procedural rights enjoyed by any other litigant in hungarian courts.45 of course, if the court űnds that the adult has full capacity then the proceedings terminate without the adult‘s capacity being limited or abrogated. őe court can űnd that the adult has 41 thelistofguardianshipauthorities’functionscanbefoundinact31of1997,para.109-22.theseinclude:childprotection(e.g.decisionstoplacechildreninfosterhomes);arrangementofthelegalstatusoffamilies(e.g.requestingcourttrialontheidentityofthefather,ifneeded);adoptions;parentalrightscases(e.g.decidingontheformsofcommunicationbetweenchildrenandparents);guardianshipcases(e.g.overseeingthetutor’sactivities);guardianship;assetmanagement(e.g.supervisionofimportant�nancialdecisionsoftheguardian);initiatingcourtprocedures(e.g.forplacingsomeoneunderguardianship);requestingcriminalinvestigation(e.g.ifcrimeiscommittedagainstchild);�nancialbene�tsandsupport(e.g.alimony);instructingexpertsanddeterminingexpertfees.also,seetheof�cialwebsiteofthekispest(abudapestdistrict)guardianshipauthorityatwww.hivatal.kispest.hu/gyamhiv/gyamhiv.htm civilcode,para. 14).43 ibidpara.11(1)(unof�cialtranslationbymdac).44 legalcapacityinhungarianterminology(jogképesség)meansthatpersonhasrightsandcanbesubjecttolegalobligations.inhungary,individualsunderlawnotonlyhavelegalcapacity,butalso‘capacitytotakeactions’(cselekvőképesség).undertheconstitutionoftherepublicofhungary,everypersonisdeemedtohavelegalcapacity,butnotnecessarilycapacitytoact.(seetheconstitutionart. 56).however,inordertobeconsistentintheuseof‘capacity‘and‘legalcapacity‘inthisreport,theyshouldbeunderstoodas‘capacitytoact‘or‘capacitytotakeactions‘inaccordancewiththehungarianterminology(cselekvőképesség).‘capacityistheabilityofperson,baseduponwhichthepersoncanobtainrightsandundertakeobligationsinhis/herownnamebyhis/herowndecisionofwill.’(de�nitiontakenfromthe‘comments’onpara.11ofthecivilcode.the‘commentsonthecivilcode’isnotanof�cialsourceoflaw,butratheraninterpretationoflegislationwhichiswidelyusedbylawyers,judges,statebodiesandothers).45civilprocedurecode,para. 306(statesthat‘inprocedureforplacementunderguardianshiptherespondenthasfullproceduralcapacity.’unof�cialtranslationbymdac.human rights and guardianship in hungaryno capacity if it determines that the adult‘s ‘ability‘46 to conduct his or her own aőairs is ‘permanently‘47 and completely diminished as a result of his or her mental state or intellectual disability.48 if the adult‘s impairment is ‘largely diminished‘ as opposed to ‘completely diminished,‘ or if the impairment is episodic then the court may űnd that the adult has partial capacity.49 pathological addiction is also a basis for a court űnding of partial capacity but is not a sucient basis for depriving a person of legal capacity.50 őe court‘s role ends when the adult‘s legal capacity has been determined. following a court order depriving the adult of legal capacity, the case is transferred to the local guardianship authority which appoints the guardian. once this has been done, the guardianship authority is responsible for supervising the guardianship, which includes overseeing guardians‘ activities and resolving disputes. decisions of individual guardians can be appealed to the local guardianship authority, while decisions of the guardianship authorities may be appealed to county level guardianship authority.51 some appeals may, in addition, be űled in the court of űrst instance depending on the nature and seriousness of the appeal.52 6 human-rights based assessment of hungary‘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 anoteonhungarianterminology:literaltranslationofthehungarianterminologyusedinthelaw‘belátásiképesség‘wouldbe‘competence‘;however,toavoidconfusionwiththecommonenglishunderstandingthatcompetenceandcapacityareusedinterchangeablywehereusetheword‘ability‘instead.civilcode,para. 15).47 thehungarianexpression‘tartósan‘canbetranslatedbothas‘permanently‘and‘forlongtime‘.itisusedinthecivilcode,para. 15). thelegislationdoesnotde�newhatismeantbythementalstateorintellectualdisability. civilcode,para. 14). ibidpara. 14).51 ifthelocalauthorityissituatedinbudapestthentheappealmaybeappealedtothecapitalguardianshipauthority. act 31 of 1997 ontheprotectionofchildrenandtheadministrationofguardianshipandtutelage,para. 118().mental disability advocacy center22addresses 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 hungarian 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. 2.6.1principles running throughout legal frameworks (indicator 1)indicator 1legislative purpose or preamble to the law encompasses respect for the human rights, dignity and fundamental freedom of people with mental disabilities. conclusion: őe constitution and other laws provide for the equal rights of people with disabilities, but human rights principles are rarely mentioned with respect to people with psycho-social disabilities or intellectual disabilities.analysis: őe hungarian constitution recognises fundamental rights and freedoms of all people. speciűcally, article 8 of the constitution states that: őe republic of hungary recognises the inviolable and inalienable rights of human beings. ensuring respect and protection for these rights is a primary obligation of the state.in the republic of hungary the law contains rules on fundamental rights and obligations, but must not impose any limitations on the essential contents and meaning of fundamental rights. in addition to the constitution, other laws integrate the principles of indicator 1. in 2001, the guardianship-related provisions of the civil code were modiűed as a result of broader recognition of the rights of people with psycho-social or intellectual disabilities. őe ministerial justiűcation on these modiűcations states: őis law creates a legal framework that better respects the autonomy of the people concerned, a more person-tailored system which limits the personal freedom and autonomy of making decisions only in the least restrictive way. at the same time, this law ensures that – when necessary – the decision about human rights and guardianship in hungary23someone‘s placement under guardianship should be made in a procedure that is fast and comprehensive and contains appropriate legal guarantees. during the codiűcation process of this law, recommendation r(99)4 of the council of europe had a basic importance.53őe ministerial justiűcation on the health care act54 emphasises that the state must ensure the general human, civil rights, and other relevant rights of health service users.55 lawmakers recognised the necessity of special rules for mental health service users and stated that ‘limitation of the patients‘ rights is permitted a) only if the person dangerous, and b) only as long as the dangerousness persists.56őe 2006 national programme of disability enshrines adherence to the principles of dignity, human rights and fundamental freedom of people with disabilities. it sets out, among others, the following standards:people with disabilities are not subjects of charity, but they are the owners of rights. people with disabilities are not ill; rather they are individuals assuming responsibility for their own lives. őey are not dependants but consumers with working capacities. őey are people who do not wish others to make decisions for them on their lives, because they are capable of doing so themselves. accordingly, all eőorts should be made to support people with disabilities taking part in identifying and then implementing measures. according to the principle of self-determination, people with disabilities can, within the frame of their capacities and opportunities, freely decide on their lives. independence covers self-determination on personal movement, time, possession, and one‘s own body. for the sake of self-determination and for the respect for human dignity the principle must be observed when granting any subsidies and support, so that people with disabilities can decide on their own objectives in their lives, on the way they want to reach them, and on their human and moral values. őe support given must not strip people with disabilities of all the things they can do by themselves, and can independently achieve.57 [emphasis in original.]őe programme is a welcome development, but it is of concern that people with people with psycho-social or intellectual disabilities are not speciűcally referenced within the text. further, this resolution has yet to be implemented. 53 ministerialjusti�cationbytheministryofjusticeonthemodi�cationofguardianship-relatedprovisions(act15of2001).inhungary,‘ministerialjusti�cation’isanof�cialexplanationoflegislation.54 act 154 of 1997 onhealthcare.55 commentsonact 154 of 199‘generalreasoning,‘para. 4 ibidparas.189-195.570/2006(ii.6),resolutionoftheparliamentonthenewnationalprogrammeondisabilityaffairs,chapteri,thebasicprinciplesoftheprogramme.englishversionavailableat:http://www.szmm.gov.hu/main.php?folderid=.mental disability advocacy center24human rights standards: principle 1 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, un-derlying 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 fundamen-tal freedoms, taking into account any qualiűcations on those rights contained in the relevant international legal instruments.58 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.‘59 őe who cites the polish mental health protection act preamble as embodying 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 […]‘60 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.‘61 recommendationr(99)principle 1 worldhealthorganization,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 19.60 mentalhealthprotectionact,m2841994,poland,ascitedinwho,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,2005),p.19. europeancourtofhumanrightsinthecaseofwinterwerp v. the netherlandsapplicationno.6301/73,judgment24october1979,(a/33)(1979-80)ehrr387,para.60.human rights and guardianship in hungary25indicator 2the legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it. conclusion: hungarian legislation clearly deűnes who may make an application for appointment of a guardian, but it fails to deűne a suciently clear and speciűc basis for űling applications.analysis: őe civil code states that the procedure to place someone under guardianship may be initiated at the request of one of the following three categories of people: family members, the guardianship authority, or the public prosecutor.62 eligible family members include the spouse, next of kin, and siblings over 18. other individuals have the right to indicate to the guardianship authority when they believe that there is a need for an adult to be placed under guardianship. however, the authority has the discretion to decide whether to űle an application in such instances. if a guardianship authority decides that guardianship is necessary,63 the authority is obliged to initiate the procedure unless an application for proceedings is űled by family members within 60 days.64 a prosecutor also has the right to participate in civil cases including űling applications in guardianship cases when circumstances suggest that a person involved is not able to protect his or her own rights for any reason.65although hungarian legislation provides the basis on which applications may be űled, the reasons listed are vague: due to mental status, intellectual disability,66 or pathological addiction (discussed above).67 őe necessary level of proof required to sustain an application is also ill-deűned. what is clear, however, is that the burden of proof falls to the applicant.68 only when the guardianship authority is the applicant, the law speciűcally requires an expert opinion, an environmental study and űnancial records or other relevant materials in the guardianship authority‘s possession.69human 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 62 civilcode,para. 15(2). governmentaldecree149/1997(ix.10.),para.144(2)onguardianshipauthorities,andthechildprotectionandguardianshipproceduresonguardianshipauthority,whichstatesthat‘guardianshipisespeciallynecessaryiftheprotectionoftheindividual‘spersonaland�nancialinterestscanbeassuredonlythroughtheplacementunderguardianship.’unof�cialtranslationbymdac. civilcode,para. 15).996(ük. 7.)instructionofthechiefprosecutoronprivatelawrelatedactivitiesofprosecutors,para.8(2).66 thephrase‘mentalretardation‘(originallyusedbythecivilcode)isavoidedinthisreport,asthetermisgenerallyregardedasderogatory.‘intellectualdisability‘isusedinstead. civilcode,para. 14).68 civilprocedurecode,para. 1).69 ibidpara. 3(2).mental disability advocacy center26nature 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 suciently 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 ocial or body, or by the court or other competent authority on its own motion.70őe recommendation calls for ‘fair and ecient procedures for the taking of measures for the protection of incapable adults‘.71 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(1) because, among other procedural defects, the slovakian court failed to secure sucient evidence in light of principle 12 of recommendation no. (99)4, which requires an ‘up-to-date report from at least one suitably qualiűed expert.‘72 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. indicator 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: adults have the right to be present and heard at court proceedings related to the deprivation of capacity. őere is no such right for guardianship authority proceedings. principle 11).71 recommendationno.r(99)principle 5). 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 hungary27analysis: hungarian law requires a courts to inform the person subject to a guardianship procedure in a written form via ordinary mail.73 notice requirements that are applied to plaintiős in civil cases also apply to applicants in guardianship applications. an adult subject to a guardianship proceedings must be considered as having full capacity until a court decides otherwise. more speciűcally, a person who is subject to guardianship proceedings has the same rights as any other person involved in court proceedings.74 őis includes the right to be notiűed of the procedure and to be present at the hearing.75 uniquely to guardianship proceedings, courts in hungary are required to appoint a ‘case guardian‘.76 őe law is silent about any other parties who might be entitled to receive notice about the proceedings. all parties are entitled to be present in court and to be heard,77 and the legislation emphasises that the adult must be heard unless there are exceptional circumstances.78 according to a governmental decree, the guardianship authority must hear from the adult before making an appointment of a guardian; however, the same decree states that this must be done only if the adult‘s ‘mental state makes this input possible‘.79 őis decree is problematic under this indicator because it implies a presumption that the adult‘s mental state precludes his or her input at a critical point in the process; the selection and appointment of the guardian. further, it is unclear how and who determines whether the adult‘s mental state is to be assessed. 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.‘80 őe explanatory memorandum to recommendation no. r(99)4 reiterates the necessity of this procedural safeguard, citing the requirements 73 civilprocedurecode,para.99().74 theproceduralrightsofpersoninvolvedincivilcasearespeci�edinvarioussectionsofthecivilprocedurecode.guardianshipspeci�cprovisionsofthecivilprocedurecodemaybefoundinchapter 18.severaloftheseprovisionsarediscussedbelow.75 civilprocedurecode,para. 1). ibidpara. 308().77 ibidparas. 13and 139. ibidpara. 309().circumstanceswhichwarranthearingwithoutthepersonalpresenceoftherespondentincludewhentherespondent‘swhereaboutsareunknownorwhentherespondent‘spresenceis‘hinderedunavoidably‘. governmentaldecree,para.131(3),149/1997(ix.10.).80 principle 11(2)alsoprovidesanexceptiontothenoticewhensuch‘wouldbemanifestlywithoutmeaningtothepersonconcernedorwouldpresentseveredangertothehealthofthepersonconcerned‘.itisthepositionofmdacthatnoticeofsuchhearingshouldalwaysbeprovidedasthereisnodisadvantagetoprovidingnoticeinallsituationsand,inadditiontothis,itseemsunlikelythatawarenessofsuchproceedingswouldputanadult‘shealthin‘severedanger‘.mental disability advocacy center28of article 6 of the european convention on human rights.81 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‘.82with 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.‘83 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 6.84 indicator 4an adult has a right to free and effective legal representation throughout guardianship proceedings. conclusion: őe civil procedure code ensures the right to legal representation. however, there is no obligation on any state body to provide an attorney to adults facing guardianship proceedings. case guardians are appointed at no charge to assist an adult in the procedure; however, they are not necessarily lawyers and their legal responsibilities are vague. analysis: all persons subject to legal proceedings in hungary have the right to be legally represented.85 however, although an adult may use his or her own lawyer‘s councilofeurope,committeeofministers.explanatorymemorandumtorecommendationr(999)4 onprinciplesconcerningthelegalprotectionofincapableadults.adoptedfebruary 1999,para. 52.82 seetheuniformguardianshipandprotectiveproceedingsact99para. 113(c).thisismodellegislationdraftedbythenationalconferenceofcommissionsonuniformstatelaws.ithasbeenendorsedbytheamericanbarassociation.thepurposeofthisuniformactwastoensuredueprocessprotectionforincapacitatedpersonsandtosubjectguardianstocourtjurisdictionthroughouttheunitedstates;consequently,itsdueprocessprovisionsmayalsoserveasmodelinotherjurisdictions.availableat:www.nccusl.orgvisited 1 may200 principle 13 seewinterwerp v. the netherlandsapplicationno.6301/73,judgment24october1979,(a/339)ehrr 3inwhichthecourtsaidthat‘[t]hecapacitytodealpersonallywithone‘spropertyinvolvestheexerciseofprivaterightsandhenceaffects“civilrightsandobligations”withinthemeaningofarticlepara. 1 […].divestingmr.winterwerpofthatcapacityamountedto“determinationofsuchrightsandobligations”.thisprinciplewasmorerecentlyreaf�rmedinmatter v. slovakiaapplicationno. 31534/96,judgment5 july 1999,para. 51 civilprocedurecode,para. 49().human rights and guardianship in hungary29services, there is no obligation on the state to provide an attorney to represent an adult subject to a guardianship procedure. when the court issues notice of the guardianship proceedings to an adult, the court must also order the appointment of a case guardian.86 őe civil code does not specify that the case guardian must be a lawyer: this requirement is however set out in the accompanying commentary.87 őe role of the case guardian is to provide general assistance to the adult.88 case guardians are a peculiarity. őey are appointed in every case, are paid for by the state, are usually lawyers and must provide assistance to the adult. however, case guardians are prohibited from providing the adult with legal representation. an adult wishing to be legally represented, instead of or in addition to the case guardian, has to pay for the attorney. human rights standards: recommendation no. r(2004)10 highlights that ‘persons with mental disorder should be entitled to exercise all their civil and political rights.‘89 it is a well-established principle of the international law, explicitly stated in article 14(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.90 as the requirements of article 14(3) of the iccpr are considered basic guarantees of a fair hearing,91 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.‘92 enforcing this requirement by providing eőective legal representation is especially crucial when the person is alleged to lack capacity to represent him or herself.93 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 1991 mental illness principles, which state: 86 ibidpara. 308(). ibidpara. 74 andaccompanyingcommentsonpara. 7488 governmentaldecree,para.137(2),149/1997(ix.10.)89 recommendationno.r(200concerningtheprotectionofthehumanrightsanddignityofpersonswithmentaldisorder,adopted22september200article 490 matter v. slovakiaapplicationno. 31534/96,judgment 5 july 1999,para. 51 seeunhumanrightscommittee,generalcomment 13para. 592 principle 7 see,megyeri v. germanymental disability advocacy center[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 sucient means to pay for it.94 indicator 5 an adult may not be detained in order to be subjected to an evaluation of his or her legal capacity. conclusion: hungarian law does not comply. adults may be detained for up to 30 days for the purpose of a capacity examination.analysis: under the civil procedure code, if ‘longer observation‘ of adults is necessary, or if they repeatedly fail to attend a forensic examination, they can be detained for a period of no longer than 30 days in a hospital to facilitate an expert examination.95 őis rule applies speciűcally to cases when the court requests a forensic expert‘s opinion. such decisions on detention may be appealed.96 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.‘97 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 5.98 in other cases, the court additionally held that forced psychiatric examinations violate article 6 (right to fair trial)99 and article unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyondecember 1799principle 1(6). civilprocedurecode,para. 310(2).96 ibid unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 5medicalexaminations.98 nowicka v. polandapplicationno. 3028/96,judgmentofdecember 32002,paras.58-61.99 seebock v. germany 1111human rights and guardianship in hungary8 (right to respect for private and family life, home and correspondence)100 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 sucient basis, by itself, to involuntarily detain a person. indicator 6an adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses). conclusion: an adult subject to guardianship has the right to present evidence and to call witnesses, as well as to examine and challenge the evidence presented by the opposing party.analysis: őe constitution guarantees the equality of rights of each party involved in civil proceedings.101 speciűcally, courts are obliged to ensure that parties have access to all requests, claims, legal statements, and other documents submitted to the court, as well as the opportunity to re ect on them.102 in general, the parties involved, as well as the prosecutor and other persons taking part in the proceedings, have the full right of access to the case documents without special permission.103 when űling an application with the court, the relevant law and facts must be stated. documents intended to be presented as evidence by the applicant must also be attached to the application.104 őe court reviews the application and if the application meets all legal requirements, schedules a date for trial.105 along with the summons, copies of the application must be sent by post to each party involved. őe date of the trial must be set 15 days or more after the adult receives the application.106 őe most important evidence in the proceedings is the expert opinion on the mental status of the adult (see indicator 7). law does not specify whether the expert opinion must be presented in writing or whether the expert must present his or her evidence orally in court but in either case, all parties present in court are given the opportunity to review and question the expert conclusion.107 őe civil procedure code also allows the adult to present their own defence, counter-claims, and evidence.108 00 seeworwa v. polandholdingthatmultipleexaminationsinshortperiodoftimeinconnectionwithsimilarcriminalcasesconstitutedanunjusti�edinterferencewiththeapplicant‘sprivatelife.applicationno.2662/9judgment7 november200 constitution,art. 57).02 civilprocedurecode,para. 3(6). ibidpara. 119(). ibidpara. 1(2). ibidparas. 1and 15 ).thecourthas 3daystoreviewandschedulethetrialdatebutthetrialneednotbeheardwithinthose 3days.06 ibidpara. 1(2). ibidpara.180(1)-(2).08 ibidpara. 139.mental disability advocacy center32human rights standards: recommendation no. r(99)4 states that ‘[t]here should be fair and ecient procedures for the taking of measures for the protection of incapable adults‘.109 őis principle echoes article 6(1) of the european convention on human rights, which guarantees a fair hearing in all determinations of civil rights and obligations.110 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 14(3) of the international covenant on civil and political rights, which lists the minimum guarantees of a fair hearing.111 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 con icts 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.indicator 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: őe guardianship law in hungary mandates an expert opinion by a psychiatrist in the proceedings to determine incapacity. however, the law does not clearly specify what kind of information such an opinion must contain, or how recent the opinion must be.analysis: in guardianship proceedings, a psychiatric opinion must be obtained in order to decide on the individual‘s capacity.112 a psychiatrist must provide an opinion on the mental status of the adult. if the application is submitted by the guardianship authority, the expert‘s opinion must be attached to the application.113 legislation does not prescribe how recent or objective the opinion must be. 09 principle 7).11 forapplicationofarticle6(toguardianshipproceedings,seewinterwerp v. the netherlandsapplicationno.6301/73,judgment24october1979.111 internationalcovenantoncivilandpoliticalrights,article 14)(e).seealsohumanrightscommittee,generalcomment 13para. 5 regardingarticle 14subsection 3 asde�ningminimumguarantees.11 civilprocedurecode,para. 310(2).113 ibid.human rights and guardianship in hungary33őe law gives the power to a judge to detain the adult for assessment if either a longer period of observation is required, or the adult repeatedly fails to appear for assessment.114 őese provisions read together clearly indicate the legislative intent that the examination be conducted in-person.unfortunately, hungarian legislation provides little guidance on how the expert should assess capacity. forensic psychiatrists can rely on two brief sections of the civil code when examining an individual‘s ability to conduct his or her own aőairs. őe section deűning the basis for total incapacitation sets out the following conditions: the person must permanently lack the ability necessary to conduct his or her own aőairs, and this inability must be due to mental status or intellectual disability.115 őe basis for partial incapacitation is that the person‘s ability is either permanently or periodically and recurrently, substantially diminished – due to mental status, intellectual disability or pathological addiction.116 őese criteria constitute the only legal guidelines for experts in preparing their opinion. 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.117 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.118 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 sucient 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.119114 ibid.115 civilcode,para. 15 ).11 ibidpara. 14 ).117 seearticleoftheeuropeanconventiononhumanrightsandarticle 17 oftheinternationalcovenantoncivilandpoliticalrights.11 principle 12.11 h.f. v. slovakiaop.cit.mental disability advocacy center342.6.3quality 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 fails to specify that a űnding of incapacity requires a demonstrable link between diagnosis and functional capacity. analysis: őere is no statutory requirement that any demonstrable link should exist between a diagnosis and the alleged inability to make decisions. however, a recent ruling of the supreme court, which is not legally binding on other hungarian courts, stated that in order to limit capacity through guardianship, two conditions should exist simultaneously: (1) a ‘damaged‘ health status, which (2) aőects the adult‘s discretionary ability in such a way that a rights limitation is justiűed.120 őe burden on proving both conditions lies with the party űling the application. as noted, this supreme court decision is not binding on lower courts. however it represents a persuasive interpretation of the applicable provisions of law and it is hoped that it will be cited in future court decisions, and that the legislature will make changes to solidify the legislation. human 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 clas-sify 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 proportion-ality 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 re ects an understanding that mental disabilities may uctuate. people need diőerent levels of protection based on the nature, seriousness and uctuation of the disability, which may vary throughout a person‘s life. principles 7 and 12 provide that an ad-equate investigation and assessment of an adult‘s particular needs is an issue of fun-damental fairness. furthermore, article 8 of the european convention on human rights mandates that any interference with a person‘s private life should be propor-tionate 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. 20 supremecourtdecisionno. 4of2006.human rights and guardianship in hungary35indicator 9a finding of incapacity is based upon sufficient evidence and serves the interests of the adult. conclusion: legislation is inadequate in relation to suciency of evidence. analysis: as discussed above in analysis of indicators 7 and 8, hungarian law identiűes the types of evidence necessary for applicants to present when űling an application for limitation or deprivation of legal capacity. when an application is űled, all documents that justify the application must be attached, particularly those that relate to property rights and ownership interests. őere is also a legal expectation that the person should appear in-person before the judge (see indicator 3). in addition, guardianship authorities are required to submit an ‘environmental study‘,121 which should contain information about the adult‘s lifestyle and care, including contact information for social care institutions and medical providers, a statement on the person‘s űnancial and social situation, as well as ‘any other relevant information‘.122 formal environmental studies are not required from individual applicants. however, the combination of required information and the contents of the environmental study imply that the court is to consider the totality of the adult‘s circumstances before deciding on the level of capacity. őe comments that accompany section 14 of the civil code support this view. őey require courts to decide not only whether the adult has a qualifying mental condition and diminished capacity, but also whether the incapacity applies to all areas of his or her life or just certain areas. őis question is not only a medical question but also a legal question. in sum, the comments require the judge to conduct a comprehensive examination of all circumstances.123 recognising the importance of the matter in guardianship proceedings, courts are empowered to order additional evidence if necessary.124 it is of concern that the requirement for an environmental study applies only to applications űled by the guardianship authority. őe current situation provides lesser standards on the basis solely of the identity of the applicant. it does not provide adequate protection against unscrupulous family members applying for guardianship for their own interests. 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. civilprocedurecode,para. 3(2).22 governmentaldecree,para.9(3),149/1997(ix.10.) commentstocivilcode,para. 14 civilprocedurecode,para. 310().mental disability advocacy center36evidence 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.125 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.126 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 sucient 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 re ect 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‘.127 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 adult.‘ 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 10selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered. conclusion: őe law provides insucient objective criteria for selecting professional guardians. it is of concern that the criteria for private guardians (usually family members) are not based solely on the adult‘s needs. őe law does, however, specify that a person cannot be appointed as a guardian if the adult expresses an objection. principle 12.26 h.f. v. slovakiaapplicationno. 547/00,judgmentofnovember8,200 principle8().human rights and guardianship in hungary37analysis: as noted, after a court limits or deprives an adult of legal capacity, the guardianship authority appoints a guardian.128 a guardian may be any adult with full capacity who accepts the appointment to act and falls into one of the following categories:129 individuals designated by the adult being placed under guardianship (including those nominated by advanced directive).őe adult‘s spouse living in the same household, parents or relatives.other individuals who may be deemed appropriate by the guardianship authority.a professional guardian.130 őe categories are listed in a hierarchical order, re ecting the legislature‘s preference.131 őe civil code further provides that a member of a non-governmental organisation may be appointed as a guardian if that organisation‘s activities are related to people with disabilities, ‘psychiatric patients, or people with pathological addictions‘.132 őe adult has the right to express their choice of guardian. if the adult objects to a particular person, the guardianship authority must not appoint that person.133 adults may write advance directives regarding their choice of guardian in the event of future incapacity. őis allows for adults to make their wishes clearly known while they have functional capacity. unless there are compelling reasons not to do so, guardianship authorities are legally bound to respect such advance directives.134 guardians can be either ‘private‘ guardians or ‘professional‘ guardians. law speciűes who may be appointed as a professional guardian. őe criteria include completion of a guardianship training course, the number of persons currently under their guardianship, and the absence of any disqualifying circumstances such as a criminal record. law allows more than one guardian to be assigned to one adult. for example, both parents of an adult could be appointed to act as co-guardians or, if a guardian would need ‘special expertise‘ to manage the adult‘s assets, additional guardians may be appointed for that purpose.135 őe law prescribes that functions should be divided between the guardians, but does not specify how.136 28 civilcode,para. 19().29ibidpara. 19(2). theaffairslaw.(v. 13affairs131 civilcode,para.19/a(1)-(3).13 ibidpara. 19/a().133 ibidpara. 19/a().134 ibidpara. 19/a().135 ibidpara. 19/b().13 ibidpara. 19/b(2).mental disability advocacy center38őe law does not explicitly require prospective guardians to detail in advance their plans for ensuring the living arrangements, medical treatment, and social arrangements for the adult. őe guardianship authority may inquire about such matters but the law does not require a formal plan. law limits the number of adults a ‘professional‘ guardian may have under their care at any given time to 30.137 however, there is no system for registering guardians in a central database, so it is possible for a guardian working in diőerent geographical areas to be responsible for more than 30 adults.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‘.138 it also suggests that states take steps to ensure that qualiűed guardians are available, such as creating training associations.139 őis indicator assesses whether legislation prescribes requirements for speciűc qualities or attributes necessary for an individual to be appointed as a guard-ian. for example, finnish legislation states that the suitability of a prospective guard-ian should be determined based on skill, experience and the nature and extent of the duties required.140 according 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‘.141 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 con icts of interest may exist in some families and recognise the dangers these con icts may present.142 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. 137 governmentaldecree,para.134(4),149/1997(ix.10.).13 principle8(2).13 principle 1714 guardianshipservicesact,(finland),442/99,chapter2,section5.unof�cialtranslationprovidedbyfinlex,serviceofthefinnishgovernment.availableat:http://www.�nlex.�/en/laki/kaannokset/1999/en19990442.pdf,lastaccessedonmay2007.141 recommendationno.r(99)principle9(2).14 explanatorymemorandumtorecommendationno.r(99)para. 44human rights and guardianship in hungary39indicator 11the guardian should not have a conflict of interest with the adult, or the appearance of such a conflict. conclusion: legislation provides that a person with speciűc con icts of interests may not be appointed as guardian. analysis: hungarian legislation fulűls to some extent the objective outlined in the conclusion above by explicitly prohibiting certain individuals from acting as a guardian. for instance, staő members of institutions may not be appointed as guardians of adults who are residents of the same institutions.143 likewise, employees of health and social services may not be guardian of an adult for whom they provide health or social services. a person is also excluded from being a guardian if they could beneűt from contracts between them and the adult e.g. contracts for life annuity.144 furthermore, nothing prevents the guardianship authority from declining an appointment of a person when there is a con ict of interests with the adult‘s best interests. it is interesting to note that the guardianship authority is legally required to examine whether or not a con ict of interest exists between the adult and the nominated guardian when the adult concerned has made the nomination him or herself or when the potential guardian is the spouse.145after the appointment of a guardian, con icts of interest may arise between the guardian and the person under guardianship. guardianship authorities are obliged to appoint a guardian ad litem to represent the interests of the person under guardianship.146 once appointed, the guardian ad litem then has the same authority as the guardian would have had in that particular case.147 human rights standards: con icts between an appointed representative and the adult are not directly addressed by recommendation no. r(99)4. best practices from other countries include 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 con ict with the guardian‘s interests.148 143 governmentaldecree,para.134(6),149/1997(ix.10.).144 ibid.145 civilcode,para. 19/a().14 ibidpara.225(1).otherscenariosunderwhichguardianadlitemshouldbeappointedincludesituationswheretheguardianiseitherunknown,whereanindividualwholackscapacityhasnoguardian,oritisnecessarytoprotecttheinterestsofanunknownpersonorpersonwhoisotherwiseunabletomanagehis/herownaffairs.147 ibidpara.22).14 frenchtitletitleavailablewww.legifrance.gouv.fr,mental disability advocacy centerőe standards of practice adopted by the national guardianship association, an american membership organisation of guardians and legal professionals, address the issue of con icts of interest between a guardian and an adult in standard 16, which states that:őe guardian shall avoid even the appearance of a con ict of interest or impropriety when dealing with the needs of the ward. impropriety or con ict of interest arises where 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.149 őis document goes on to state: ‘a guardian who is not a family guardian shall not di-rectly provide housing, medical, legal or other direct services to a ward‘.150 őe guard-ian 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 con ict of interest.indicator 12an adult has the right to appeal a finding of incapacity and/or the appointment of a guardian. conclusion: adults subject to guardianship proceedings are entitled to appeal a űnding of incapacity and to express an objection to appointment of a guardian.analysis: adults have the right to appeal a court decision limiting legal capacity or depriving a person of it altogether.151 őe general rule is that such a court order comes into eőect after the expiration of the appeal period (15 days from the date on which the adult receives the court decision by regular mail),152 if no appeal is űled, or following an appeal court‘s decision.153 additionally, adults may object to the appointment of the proposed guardian. if the adult ‘expresses an objection‘, the guardianship authority is precluded from appointing the person in question.154 őe adult has no right to challenge the appointment of a professional guardian by the guardianship authority.155 however, adults may appeal to the administrative court or the guardianship authority to 14 national15 ibidstandard 16.151 civilprocedurecode,para.33).15 ibidpara.34).153 ibidpara. 311).154 civilcode,para. 19/a().155 governmentaldecree,para.134(7),149/1997(ix.10.).human rights and guardianship in hungarychallenge a guardianship authority‘s decision to select a (non-professional) guardian, such as a family member of the adult. 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‘.156 a subsequent united nations resolution, the un mental illness principles, rearms the un‘s position and requires states to guarantee the right to appeal a decision to a higher court by the adult whose capacity is at issue, by their personal representative or other individuals.157 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 individual 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 13-17 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 13by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise political rights. conclusion: őe constitution prohibits people under guardianship from voting.analysis: őe constitution states that adults placed under partial or plenary guardianship as a result of an eőective court decision have no right to vote.158 őus, over 60,000 people under guardianship are excluded from exercising political rights. őis may further exacerbate stereotypes about people with disabilities and may contribute to social exclusion more generally. 15 undeclarationoftherightsofmentallyretardedpersons,proclaimedbygeneralassemblyresolution2856(xxvi)of20december1971.157 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 17 december99principle 1(6).15 theconstitution,art. 70().mental disability advocacy center42őe constitutional bar on voting is inconsistent with the very notion of partial legal capacity. partial limitation of a person‘s rights means that only certain aspects of an adult‘s decision-making areas are given to the guardian. a blanket ban on voting is arbitrary and does not allow for any proportionate consideration in individual cases. for example, an adult may have their capacity limited in the area of űnancial management only yet still be excluded from political participation – an unrelated area of life. in addition to this, people with limited or no legal capacity are deprived of civil and political rights in many other areas such as founding or acting as ocials of political parties.159human 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 1 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 re ect 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‘.160 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‘.161 indicator 14by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to work. conclusion: adults under plenary guardianship are automatically deprived of the right to work. people under partial guardianship are in some cases deprived of the right to work. 15 actof1989,ontherighttoassociate,para.8(2).60 actionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinsociety:improvingthequalityoflifeofpeoplewithdisabilitiesineurope2006-2015,recommendationno.(2006)5 ofthecommitteeofministersofthecouncilofeurope,para. 3 recommendationno.r(99)principle 3(2).human rights and guardianship in hungary43analysis: all agreements that would otherwise be legally binding are null and void if made by persons without legal capacity.162 in such cases, the law requires that the guardian must act on the adult‘s behalf,163 unless they are minor transactions.164 adults under partial guardianship are entitled to work and are entitled to dispose up to 50% of their monthly income by themselves.165 however, since people under plenary guardianship are precluded from entering into contracts on their own behalf, it is questionable whether they are entitled to enter into employment contracts. people under full or partial guardianship are clearly excluded from speciűc jobs, namely forest guards,166 attorneys,167 public administration employees,168 or most positions within the higher education system.169in 2004 the parliamentary commissioner for human rights (ombudsman) noted that provisions of the civil code and the labour code are inconsistent.170 in 2005 the government established an inter-ministerial committee to look into the issue of employment of people under guardianship. őe results of this have not been promising. two types of ‘occupation in social institution‘ have been introduced:work-rehabilitation occupation. őis is for people under plenary guardianship. őe salary must be at least 30% of the minimal wage.development-preparation occupation. people under plenary guardianship do not qualify. őis pays around the same as employment but without the other beneűts to employment.people under plenary guardianship who live in institutions can access ‘rehabilitation occupation‘, which pays around the same for people in other employment but does not include other beneűts (such as health insurance, pension contributions). őe situation for people under guardianship who live in the community is unchanged: they cannot access employment. 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 with the outside world.‘ őe european social charter (revised) also contains 62 civilcode,para. 15/a(). ibid.164 ibidpara. 15/a(2). ibidpara. 14/b(2)(c).66 act54of1996,onforestsandtheprotectionofforests,appx.7,section7.2. act 11 of 1998,para. 13)e.68 act22of 1992,para. 1/s.69 act 13of200para.(2)b.17 parliamentarycommissionerforhumanrights,reportsobh3360/2004andobh29/2002.mental disability advocacy center44provisions protecting the right to work. 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. 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 capacity to do so.indicator 15by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to property.conclusion: an adult under guardianship is automatically deprived of the opportunity to independently exercise rights over property.analysis: guardianship legislation was created mainly for the protection of an indi-vidual‘s property; therefore, this is one of the areas that is most aőected by incapacita-tion. adults under plenary guardianship may not make any legally valid transactions regarding property.171 adults under partial guardianship may exercise property rights only with the consent of the guardian.172 if the adult‘s capacity is limited in speciűc areas, his or her rights to dispose of property are limited only if the court has speciű-cally declared property rights to be restricted. 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 re ect the reality, which is that functional capacity often uctuates, and therefore decisions should be tailor-made. őe right to use and manage one‘s own property is protected in article 1 of protocol no. 1 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 posses-sions. 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. recommendation no. r(99)4 follows this sentiment by recommending that ‘[w]henever possible the adult should be enabled to enter into legally eőective transactions of an everyday nature‘.173 őe council of europe returned to this theme 171 civilcode,para. 15/a().17 ibidpara. 14/b().173 recommendationno.r(99)principle 3).human rights and guardianship in hungary45in its 2006 ‘action plan to promote the rights and full participation of people with disabilities 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‘.174indicator 16by 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 under plenary guardianship are automatically deprived of their right to marry, to found a family and respect of family life. adults under partial guardianship may marry unless the court speciűes otherwise. analysis: people under plenary guardianship are prohibited from entering into legally binding agreements, including a marriage agreement. neither the guardianship au-thority nor the guardian have the discretion to consent on the adult‘s behalf.175 people under partial guardianship are entitled to marry without the consent of the guard-ian or the guardianship authority, because the civil code lists ‘legal statements of a personal nature‘ (which applies to marriage) as an exception to the legal restrictions otherwise applying to people with limited capacity.176 hence, adults under partial guardianship are allowed to marry unless speciűcally prevented by a court. at the same time, if the court decides that the person lacks capacity in family-related issues, the adult can be deprived of capacity in speciűc areas, such as the right to act on their own behalf in family law proceedings, to dispose of marriage property, or to determine the name of his/her children.177 adults under plenary or partial guardianship are not entitled to adopt children,178 may not independently űle a court application regarding family status issues,179 or make a paternity declaration.180human rights standards: article 8 of the european convention on human rights guarantees the right to respect for private and family life, home and 174 councilofeurope,actionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinsociety:improvingthequalityoflifeofpeoplewithdisabilitiesineurope2006-2015,recommendation(2006)5,para.3.12.3(viii).175 seecomments,familycode,para.9.17 civilcode,para. 14/b(2)(a).177 ibidpara. 14 (6)().17 familycode,para. 47).17 ibidpara. 44(2).80 ibidpara. 37).mental disability advocacy center46correspondence. őis imposes on states a negative obligation not to interfere with, as well as a positive obligation 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 12, 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, arming 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‘,181 and that ‘[p]ersons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood‘.182indicator 17by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to associate.conclusion: placement under guardianship deprives people of the opportunity to exercise their right to associate in certain areas of their life.analysis: őe law is unclear whether people under guardianship – either plenary or partial – can fully exercise their right to participate in associations such as membership organisations or professional associations. however, what is clear is that people under any form of guardianship are legislatively prohibited to be a member of an ‘employee council‘ (a body representing the interests of the employees at workplaces),183 the chamber of auditors,184 the chamber of architects,185 and the development and innovation council.186 nor are they entitled to hold ocer positions within cooperatives,187 or be members of school cooperatives.188human 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,rule9.82 ibidrule9(2). act22of 1992,thelabourcode,para. 46(). act act58of1996,onthechambersofdesigners,engineersandarchitects,para.31(e).86 governmentaldecreeonthecouncilofresearchandtechnologicalinnovation,para.5(1),255/2003(xii.24.). act141of2000,onthenewcooperatives,para.35(b).88 governmentaldecreeonschoolcooperatives,para.3(2),159/2001.(ix.12.)human rights and guardianship in hungary47skills 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 11 of 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.189 it is dicult 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-determina-tion, the state needs to establish workable systems to review the responsibilities, supervision and accountability of guardians. indicators 18-25 address these re-sponsibilities of guardians.indicator 18a person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. conclusion: őrough the existence of plenary guardianship, hungarian legislation leaves open the possibility that there are people with functional capacity in certain areas who have been deprived of all decision-making rights. analysis: for partial guardianship the court may identify and accommodate the speciűc needs of the individual‘s life where they are capable of independent management and decision-making. őe court may limit the adult‘s legal capacity in any of those areas where it űnds it necessary to do so. law also provides for a ‘general limitation‘ within partial guardianship. a general limitation is used when the court űnds that an adult‘s capacity is ‘generally limited in all areas of life‘,190 and the result of such a űnding is that the adult may then independently engage in transactions only of minor signiűcance.191 őis would logically include buying a cup of coőee or a newspaper. 89 sidiropoulos v. greeceapplicationno.2669/9judgment 1july 1998,998)ehrr3390 civilcode,para. 14). asdiscussedinothersectionsofthisreport,thelawelaboratesfourareasoflifeinwhichadultsunderpartialguardianshipmayactindependently,namely:agreementsofmental disability advocacy center48human 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 act without requiring the appointment of a representative or a representative with continuing powers‘.192 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 trans–actions of an everyday nature.a best practice example could be from france, where legislation successfully incorporates this principle. when establishing guardianship in france, the judge may list transactions that an adult may undertake independently of the guardian. a medical expert must be consulted when the judge assesses those tasks for which the adult will retain decision-making.193 another approach – encouraging the adult‘s participation – 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 personalnature,minortransactionsofaneverydaynature,disposalofupto 50%ofincomeearnedfromemploymentorsocialbene�ts,andenteringintocontractswhichrequirenoobligationbutprovideonlybene�ts.civilcode,para.14/b(2).92 recommendationno.r(99)principle2(). frenchcivilcode,op.cit,article501.unof�cialtranslationprovidedbylegifrance,serviceofthefrenchgovernment.availableat:www.legifrance.gouv.fr(lastaccessed 1 may200).human rights and guardianship in hungary49on 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.194 in this paradigm, the guardian is responsible for ensuring the adult‘s participation and opportunity to act whenever possible.indicator 19an adult subject to guardianship must be consulted about major decisions, and have his/her wishes adhered to whenever possible.conclusion: őe wishes of the adult under guardianship must be taken into account, but only if the adult is ‘able‘ to express an opinion and if circumstances make adherence to that opinion possible. analysis: within plenary guardianship, the guardian has broad discretion to take legal actions on behalf of the adult.195 if the adult is able to express a view or make a request, the guardian must take this into account.196 at the same time, the guardian has sole discretion to determine whether the adult is ‘able‘ to express their opinion. once the guardian has decided that the adult is unable to express an opinion, the guardian is legally free to take all decisions without every reporting to or consulting with the adult. őis legal loophole allows for guardians to ignore the opinions of adults and precludes adults from participating in decisions that may aőect every aspect of their lives. őe protective provisions of the law aőecting adults under partial guardianship (either under the general limitation or a speciűcally tailored order) are stronger. partial guardians must obtain consent from the adult before exercising their decision-making authority on behalf of the adult. őere are three scenarios under which guardians of adults with partial capacity are empowered to act independently and without requirement of consent of the adult:when speciűcally empowered to do so by a provision of law;when designated to do so by power of attorney duly executed by the adult; or in emergency circumstances.197 otherwise binding actions taken by an adult under partial guardianship are valid only if the guardian approves.198 if there is a disagreement between the adult and seeuniformguardianshipandprotectiveproceedingsact99),art. 3para. 313(a). civilcode,para. 15/a().96ibid.197 ibidpara. 14/d(),).98 ibidpara. 14/b().mental disability advocacy centerthe guardian, the guardianship authority makes the űnal decision.199 őe law is un-clear on whether the adult can appeal such decisions of the guardianship authority. financial management must be performed in manner which promotes the welfare of the adult. őe word ‘welfare‘ is not clearly delineated, but what is clear is that guardians must consider the adult‘s wishes and satisfy their lawful requests in con-nection with their űnances.200 ongoing violations of these consultation and consent requirements may lead to the removal of the guardian.201 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.202 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‘.203 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‘.204 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‘.205 99 ibid.200 ibidpara.20/c.20 ibidpara. 15/a().202 seethefinnishguardianshipservicesact, 442/99,section 43entitled“hearingtheward”,whichreads,‘beforetheguardianmakesdecisioninmatterfallingwithinhis/hertask,he/sheshallinquiretheopinionoftheward,ifthematteristobedeemedimportantfromtheward‘spointofviewandifthehearingcanbearrangedwithoutconsiderableinconvenience.’unof�cialtranslationprovidedbyfinlex,serviceofthefinnishgovernment.availableat:http://www.�nlex.�/en/laki/kaannokset/1999/en19990442.pdf,visitedonmay 1200thisprovisionisnotcitedas‘bestpractice‘examplebecausethefinnishlegislationunfortunatelycontainsbroadlistofderogations.20 principle9().20 principle9().20 principle2(6).human rights and guardianship in hungaryindicator 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: in plenary guardianship and under the partial guardianship general limitation, the guardian‘s obligations are usually not clearly deűned; they are all-encompassing. in other cases of partial guardianship, the court speciűes those areas in which the adult needs assistance and the guardian can act only in these areas. analysis: when a guardian is appointed, the rights and obligations of the guardian are included in the guardianship authority‘s appointment order.206 legislation only brie y lists these activities; it does not provide an exhaustive list of rights and obligations of guardians. however, the civil code sets out guardians‘ duties generally:financial management;207 legal representation; and in exceptional cases, ensuring personal care;208 as a general rule, guardians may not transfer or delegate their authority to make decisions to another person.in plenary guardianship, guardians may make all legal and non-legal decisions on the individual‘s behalf subject to the consultation requirements discussed above.209 if the adult is under partial guardianship and the court has identiűed the areas that require the guardian‘s assistance, the guardian‘s role is limited to those enumerated areas.210 if the adult has partial capacity but is placed under the ‘general limitation,‘ the guardian‘s tasks are not speciűcally listed and the guardian‘s consent must be obtained for all major decisions. őis sweeping nature of the guardian‘s participation is akin to plenary guardianship in that the general limitation does not provide for assistance only in areas where such help is warranted. őe most detailed description of the guardians‘ duties relates to the area of űnancial management and the monitoring of űnancial actions taken by the guardian.211 financial management issues are examined below (see indicator 22).human rights standards: domestic legislation should provide clear direction to the authority determining capacity to deűne the scope of the individual guardian‘s 206 governmentaldecree,para.134/a(1)(a),149/1997(ix.10.).20 civilcode,para.20/c.208 ibidpara.20(1)-(2).209 ibidpara. 15/a(). ibidpara. 14).11 seecivilcode,paras.20-20/dandgovernmentaldecree,chapters20-22,149/1997.(ix.10).mental disability advocacy center52obligations in light of the particular adult‘s capacity. recommendation no. r(99)4 encourages countries to take a exible 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 sucient, in scope or exibility, to enable a suitable legal response to be made to diőerent degrees of incapacity and various situations‘.212 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.213a 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‘.214 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,215 consent to marriage or adoption, or make or revoke a will, absent speciűc permission of the court.216indicator 21a 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: law fails to oblige the guardian to promote the adult‘s independence and is silent on promotion of living in the community. analysis: although there is a general provision to safeguard and promote the interests and welfare of the adult,217 the law is silent on promotion of independent living in community settings. hungary‘s social care system is heavily institution-based. őere are 54 large institutions in the country for people with psycho-social disabilities, and 147 institutions speciűcally for people with intellectual disabilities.218 principle2().13 principle 3).14 thefinnishguardianshipservicesact, 442/99,para.8().15 ibidpara. 34 ibid 442/99,para.29.17 civilcode,para.20(1)-(2). thisisthenumberofsocialcarehomesforpersonswithdisabilities,neverthelessin2001personswithphysicalandsensorydisabilitiesdidnotqualifyforsocialcarehomehuman rights and guardianship in hungary53őe lack of obligation on guardians to promote independence may partly explain the fact that the numbers of people institutionalised for life in hungarian ‘social care homes‘ has remained at a steady for many years.219 it bears repeating that recent research conducted by a local non-governmental organisation has found that anywhere between 80 to 100 percent of adults in social care institutions for people with psycho-social disabilities are incapacitated and placed under guardianship.220 whether these adults were placed into institutions űrst and then placed under guardianship or whether placement under guardianship leads to institutionalisation is arguable. in any case, there seems to be a strong nexus in hungary between institutionalisation and placement under guardianship. 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 19: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.placement(theymighthavebeenplacedinrehabilitationinstitutions)andpersonswithmentalhealthproblemswerenotconsideredpersonswithdisabilitiesunderthehungariandisabilityde�nition. in 1 1 7 7http://www.nepszamlalas.hu/hun/kotetek/08/tablak0).220 pszichiátriaiérdekvédelmifórum,‘thehumanrightsofpatientsinsocialcarehomesformentallyill‘,englishtranslation,budapest,200mental disability advocacy center54community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.221 őe 1991 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 commu-nity‘.222 each person has ‘the right to be treated and cared for, as far as possible, in the community in which he or she lives‘.223 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‘.224 although living arrangements are not expressly addressed in recommendation no. r(99)4, the principle of propor-tionality dictates that, in all decisions, a course should be adopted that least restricts the adult‘s rights and freedom while providing adequate protection.225 indicator 22the guardian must manage the assets of the adult in a manner that benefits the adult under guardianship. conclusion: guardians have a legal duty to manage the assets of the adult in a manner that beneűts the adult.analysis: a guardian must manage the adult‘s űnances in a manner that both protects the assets and promotes the welfare of the adult.226 as noted in previous indicators, guardians must consider the personal wishes of the adult and make eőorts to satisfy their lawful requests. őis is, of course, dependent upon the amount and type of űnances which the adult owns.227 if the adult lives in a social care institution (see previous indicator), the guardian is obliged to pay a ‘care fee‘ to the institution and to provide the adult with pocket money.228 22 reportoftheadhoccommitteeoncomprehensiveandintegralinternationalconventionontheprotectionandpromotionoftherightsanddignityofpersonswithdisabilities,eighthsession,newyork,14-25august2006.222 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyondecember 17 199principle 4lifeinthecommunity.22 ibidprinciple 7roleofcommunityandculture.22 recommendationr(2006)5 ofthecouncilofeuropetomemberstatesonthecouncilofeuropeactionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinsociety:improvingthequalityoflifeofpeoplewithdisabilitiesineurope2006-2015(adoptedbythecommitteeofministersonapril 52006atthe96stmeetingoftheministers‘deputies),para. 3.8.(vi).22 principle6(2).226 civilcode,para.20/c.22 ibid.228 act 3 of 1993 onsocialadministrationandsocialservices,paras. 117 117/a(), 119().human rights and guardianship in hungary55if an adult under partial guardianship is employed, he or she may control the spending of up to half of the earnings.229 otherwise, guardians may expend funds for the everyday needs of the adult or in amounts less than that prescribed by the guardianship authority (for example, up to 50,000 hungarian forints, approximately 190 euros) without prior approval of the guardianship authority. however, transactions of major assets, such as real estate, may only be carried out with the approval of the guardianship authority.230 őere are more stringent requirements for record-keeping with respect to űnancial management than other areas. both the guardian and the guardianship authority have responsibilities for űnancial management.231 even before guardianship is formally established, the guardianship authority must protect the űnances of an adult who may be in need of guardianship. őe guardianship authority may take urgent protective action over assets by temporarily freezing them even before the court has ruled on the issue of legal capacity of the adult concerned.232 őe guardianship authority has the discretion to decide on the extent of freezing assets and for how long assets should remain frozen. őis decision may not be appealed.233 after a guardianship is established, the newly appointed guardian is required to make an initial report to the guardianship authority that details the űnancial situation of the adult.234 őroughout the course of the guardianship, the guardianship authority maintains its protective oversight of the assets and may require the guardian to report at any time on assets that are not immediately required for ongoing expenses, for example, savings, shares and other valuables.235 human rights standards: recommendation no. r(99)4 states that ‘the property of the incapable adult should be managed and used for the beneűt of an adult and to secure his or her welfare‘.236 principle 20 further provides that a guardian should be held liable for ‘any loss or damage caused by them to incapable adults while exercising their functions‘.237 őis principle suggests that a guardian should be held liable for mismanagement or misappropriation of the funds or property of an adult under guardianship, arguably including acts or expenditures that do not directly beneűt the adult. őe world health organization is of the view that ‘[s]pecifying penalties if guardians fail to perform their duties would strengthen legislation‘.238229 civilcode,para. 14/b(2)(c).ibidpara. 16.31 ibidparas.20-20/d. ibidpara. 18.ifassetsarefrozentheguardianshipauthoritymustappointguardiantolookafterthefrozenassets.33 ibidpara.8.34 governmentaldecree§146(3),149/1997.(ix.10.)35 civilcode,para.20/b. principle8().37 principle20(). worldhealthorganisation,whoresourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,200),p. 43mental disability advocacy center56indicator 23the guardian is obliged to visit and confer with the adult periodically.conclusion: guardians are not legally obliged to regularly visit an adult under guardianship. law mandates an adult‘s wishes must be taken into account, if possible. analysis: hungarian legislation does not require a guardian to ever visit the adult, but does require a guardian to consult with the adult before taking decisions, and to follow the adult‘s wishes whenever possible.239 őis obligation exists only if an adult is deemed (presumably by the guardian) able to express his or her views. őere is no legal obligation for the guardian to ever visit the adult – therefore the guardian could lawfully carry on as guardian for life without ever meeting the person for whom they are responsible. őe guardian must report on the general status of the adult and his or her condition upon request of the guardianship authority,240 suggesting that the legislature intended some form of contact between guardian and adult. human rights standards: a cornerstone of recommendation no. r(99)4, and person-centred protective systems generally, is the need to ensure that the adult remains central within the decision-making process. in order to take the adult‘s wishes into account, it follows that the guardian must consult with the adult. recommendation no. r(99)4 importantly places an obligation on the guardian to provide the adult with sucient information concerning major decisions to put the adult in a position to express an informed view on the issue.241 another important beneűt of requiring guardians to visit adults they represent is that they may gain a full understanding of the adults‘ living conditions, as well as the care and services provided. őis links with the indicator above on the guardian‘s duty on maximising independent living.a best practice example is the model legislation uniform guardianship and protective proceedings act, which provides that the guardian must ‘become or remain personally acquainted with the [adult] and maintain sucient contact with the [adult] to know of the [adult‘s] capacities, limitations, needs, opportunities, and physical and mental health‘.242 civilcode,para. 15/a().ibidpara.20/a.41 seeprinciple9. theuniformguardianshipandprotectiveproceedingsact99),para. 313(b)(i).human rights and guardianship in hungary57indicator 24a guardian‘s decisions are periodically reviewed by an objective body and the guardian is held accountable for all decisions.conclusion: guardians must provide annual reports to the guardianship authority. analysis: guardians must annually send written reports to the guardianship authority. őe primary focus of these reports is űnancial matters. őese reports must contain details of űnancial transactions and supporting documentation.243 őe initial report űled by the guardian (see indicator 22) provides a baseline against which the income and expenditures are measured. guardians must also annually provide a statement of the adult‘s ‘personal condition‘, which should include information about the adult‘s education, health care and living conditions.244 őere are less strict reporting requirements for guardians who are relatives of the adult. if the adult has no assets and if his or her monthly income is less than three times the minimum old age pension, then no annual report is required. if the monthly income is below four times the minimum old age pension, then parents who act as guardian are exempt from űling an annual report. further, parents of the adult who act as guardian and are required to submit annual reports are permitted to submit a simpliűed, less detailed format that is not backed up by invoices.245 guardians are required to submit additional information upon request of the guardianship authority.246 if a guardian fails to submit a timely report, he or she may receive a written warning from the guardianship authority. continued failure of reporting duties may result in the guardianship authority‘s initiating a court procedure to remove the guardian from the position.247 adults under guardianship have no right to receive the reports űled by guardians, nor is there any procedure for them to request information on assets or any other report from the guardian. failure to fulűl duties can have serious consequences for the guardian. anyone can request the guardianship authority to investigate an allegation of abuse or neglect. őe guardianship authority must investigate allegations of failures of the guardian and, if necessary, ask for involvement of other state bodies such as the police or the public prosecutor‘s oce. if the guardianship authority determines that a guardian has acted inappropriately, it has several 43 morespeci�crequirementsaredetailedinthelawtoaddressthe�nancialreportingrequirementswhentheadulthascommercialinterests.governmentaldecree,para.158,149/1997(ix.10.).44 governmentaldecree,para. 158().45 closerelativeswhoareguardiansmayalsobepermittedto�lesimpli�edformataccountsiftheadult‘spreviousyearsincomewaslessthandoubletheminimumoldagepension.governmentaldecree,para.159(a),149/1997(ix.10.). civilcode,para.20/d().47 governmentaldecree,para.162(1),149/1997(ix.10.)andcivilprocedurecode,para.123.mental disability advocacy center58options available to it, depending on the circumstances. it may űle a criminal or civil complaint against the guardian on behalf of the adult. it must remove the guardian if the guardian has caused serious harm to, or has endangered the interest of, the person under guardianship.248 human rights standards: recommendation no. r(99)4 speciűes that ‘[t]here should be adequate control of the operation of measures of protection and of the acts and decisions of representatives‘.249 őe recommendation also speciűes that guardians should be held accountable for their actions and for any loss or damage caused by them to the adults under their care and, in particular, that ‘the laws on liability for wrongful acts, negligence or maltreatment should apply to representatives and others involved in the aőairs of incapable adults‘.250 to meaningfully comply with this measure, review mechanisms must specify what is expected both from guardians in terms of their duties (as discussed under indicator 20), and what is expected in procedural terms in order to comply with monitoring regulations. indicator 25a complaint procedure exists that triggers review of guardian‘s acts or omissions.conclusion: law does not set out a complaint procedure for reviewing the guardian‘s acts. analysis: őe guardianship authority oversees all guardianship arrangements. őis includes adjudicating on disagreements between guardians and adults as well as to address complaints made against guardians. although certain guardianship authori-ties may have their own internal complaints procedures, there is no uniűed legislative requirement for them to do so. őis creates the probability that adults under guard-ian-ship do not know what their rights are and what procedures will be followed if they make a complaint. human rights standards: limitation or deprivation of legal capacity should not exclude an adult from access to courts, authorities or complaints mechanisms to review a guardian‘s decision. it is imperative that there are bodies which have a legal mandate to amend or reverse a guardian‘s decision. regrettably recommendation no. r(99)4 does not directly address this point, but the world health organization has listed the availability of procedures for review of a guardian‘s decisions as one of the recommended ten basic principles of mental health law. őe components of civilcode,para. 19/c(2). principle 16. principle20.human rights and guardianship in hungary59the review, according to the who, are availability, timeliness, accessibility to the individual concerned and an opportunity for the adult to be heard in person.251 a best practice example can be found in a united states statute, which provides that an adult may request the court to review and amend a decision made by a guardian, to review the guardian‘s responsibilities, to remove a guardian and appoint a successor, or to terminate the guardianship.2522.6.6 necessity of guardianship and alternatives (indicators 26-29)őe last group of indicators (indicators 26 to 29) examines legal alternatives to guardianship. because of its intrusive and personal nature, guardianship should be used only as a last resort. legislation that is compliant with international human rights norms usually provides for alternatives that give protection to individuals with mental health problems and intellectual disabilities, but these alternatives are less intrusive in nature and preserve the adult‘s rights to exercise decision-making to the greatest extent possible. őe last group of indicators re ect the need for guardianship frameworks to recognise the dynamic nature of capacity over time. guardianship should be used only as long as and to the extent necessary to accomplish the task of protection of vulnerable persons. őerefore, it is paramount that guardianship arrangements are reviewed periodically, and modiűed or terminated as required by circumstances.indicator 26less restrictive alternatives to guardianship are available and are demonstrably exhausted before a guardianship is imposed.conclusion: no less restrictive alternatives to guardianship exist in hungarian law. as a consequence, there is no legal requirement to exhaust other alternatives before guardianship is imposed.analysis: hungarian law does not provide for any alternatives to guardianship. őere is therefore no legal requirement or expectation that less restrictive alternatives will be sought. however, the law emphasizes that ‘the necessity of placement under guardianship especially exists, if the personal and űnancial protection of the individual can be ensured only by placement under guardianship‘.253 in a welcome explicit reference to international law, the ministerial justiűcation on the modiűcation of the civil code in 2001, states the following:51 mentalhealthcarelaw:tenbasicprinciples,who/mng/mnd/96.9.worldhealthorganization,geneva.availableat:http://www.who.int/entity/mental_health/media/en/lastaccessedon 1 may200 see,e.g.,alaskastat.13.26.5 (bender200).53 governmentaldecree,para.144(2),149/1997(ix.10.).mental disability advocacy center(…) őis law creates a legal frame which respects the autonomy of the people concerned in a better way, a more person-tailored system, which limits the personal freedom and autonomy of making decisions only in the least restrictive way. at the same time this law ensures that – when necessary – the decision on someone‘s placement under guardianship should be made in a procedure which is fast and comprehensive and contains appropriate legal guarantees. during the codiűcation process of this law, the recommendation r(99)4 of the council of europe had a basic importance. 254 őere are indications that hungary is moving towards a legal framework that would fully embrace less restrictive alternatives to guardianship. speciűcally, the recently adopted resolution of parliament on the national disability programme (discussed above in section 2.3) says: őe principle of protecting personal rights, and the protection of the (special) rights of people with disabilities that they are entitled to, as well as the principle of supported decision-making must prevail in all general rules and regulations (e.g. guardianship, caretaking). őe principle of supported decision-making, as against decisions made by professionals instead of people with disabilities, means that people with disabilities are supported in their own decision-making depending on their individual capacity to some or to full extent, covering all possibilities. in order to make use of this principle, the government must help people with disabilities by providing the necessary resources to create a network for supported decision-making.according to the principle of self-determination, people with disabilities can, within the frame of their capacities and opportunities, freely decide on their lives.255 őese statements are encouraging, but remain merely aspirations. őere is currently no legal provision for less restrictive alternatives.256 human rights standards: recommendation no. r(99)4 states in principle 5 that a protective measure such as legal incapacity and guardianship should be based on the principle of minimum necessary intervention, or the least restrictive alternative. it suggests that an adult should not be placed under guardianship unless other less formal 54 ministerialjusti�cationbytheministryofjusticeonthemodi�cationofguardianship-relatedprovisions(act 15 of200).55 resolutionoftheparliamentonthenewnationalprogrammeondisabilityaffairs,chapteri, 10/2006(ii.6)thebasicprinciplesoftheprogramme.englishversionavailableat:http://www.szmm.gov.hu/main.php?folderid=29lastaccessednovember2006. the 1/2000ministerialdecreebytheministryofsocialandfamilyaffairscreatedlegalbasisforso-called‘supportingservice’(seesections39/a-39/e),andsomeof�cialsviewitastoolforsupporteddecision-making.butinfact,itsfunctionsaremorerelatedtopersonalcareandassistanceintheareasofeverydaylife,studies,work,etc.ofpeoplewithmentalhealthproblemsandintellectualdisabilities,andnotspeci�callyforpeopleunderguardianship.human rights and guardianship in hungaryarrangements have been exhausted. a best practice example of legislation that meets the standard set out in this indicator can be found in canada. őe manitoba vulnerable persons living with a mental disability act speciűes that a substitute decision maker may not be appointed before it is determined whether the individual has a support network and ‘reasonable eőorts have been made to involve the support network‘.257 furthermore, if the űrst criterion is not met, the court may mandate eőorts to involve a support network as an alternative to appointing a substitute decision-maker.258 indicator 27guardianships are tailored to the individual needs of the person involved and address the varying degrees of capacity.conclusion: partial guardianship may be tailored to an adult‘s needs. nonetheless, there are over twice as many people under plenary guardianship, which does not recognise varying degrees of capacity, and/or varying degrees of need.analysis: since legislative amendments in 2001 it has been possible for hungarian courts to limit the capacity of an adult to act in certain areas while retaining the authority to act on their own behalf in others (see indicators 18 and 20 above). law provides a non-exhaustive list of areas in which an adult‘s ability to act on his or her own may be limited by the court.259 while limited guardianship provides for a determination as to which particular areas of the life of an adult subject to guardianship cannot be managed without a guardian, it can be tailored to the adult‘s speciűc level of capacity and needs. conversely plenary guardianship takes a blunt, uniform approach with no scope for individually tailored decisions. human rights standards: principle 6 of recommendation no. r(99)4, which addresses the principle of proportionality, suggests that after all less restrictive alternatives have been exhausted and where guardianship is deemed to be necessary, it should be imposed in a manner proportional to the adult‘s degree of capacity and should be tailored to meet the speciűc needs of the adult. guardianship should restrict the legal capacity to act and the rights and freedoms of an adult only to the extent necessary to provide adequate protection.260 57 vulnerablepersonslivingwithmentaldisabilityact,r.m.,ch.29,paras.49(a)-(b)(1993). 5adult’sperson‘ssimilarly,yukon,havebeentriedorcarefullyconsidered.‘adultprotectionanddecisionmakingacts.y.ch.schedulea,para. 32((yukon). civilcode,para. 14(6).260 explanatorymemorandumtorecommendationr(99)para. 40.mental disability advocacy center62internationally, this standard has been endorsed by the world health organization‘s handbook on mental health, human rights and legislation, which advises that ‘any [guardianship] order must be tailored to ensure that it best suits the interests of the person who is subject to it‘.261 a best practice example comes from germany, where guardianship has been largely replaced by ‘care and assistance‘ (betreuung in german) programmes, which include an individualised support order to be carried out by a caretaker (betreuer in german) whose responsibility is limited to those tasks which the adult cannot manage without assistance. additionally, the adult maintains all legal rights; the court determines whether under the circumstances it is necessary for the caretaker to legally represent the individual or to provide additional consent for legal actions. őis has been described as a double-competence system in which both the caretaker and the adult have competence in legal issues.262 indicator 28guardianship is periodically reviewed and continues only as long as appropriate.conclusion: guardianship is reviewed infrequently, and some guardianships are not subject to review. analysis: őe court must terminate guardianship if the conditions that led to the need for guardianship no longer exist.263 a court must schedule a review for the necessity of guardianship no more than űve years from the date on which it limited or deprived the adult of legal capacity.264 őe guardianship authority is tasked with initiating these reviews. 265 őe űve-year review does not apply for cases in which the judge considers the adult‘s underlying condition to be permanent.266 law is silent on the content of such reviews, for example, whether a new capacity determination must be conducted or whether the adult is entitled to particular procedural protections. 26 resourcebookonmentalhealth,humanrightsandlegislation:stopexclusion,daretocare(worldhealthorganization,geneva,switzerland,2005),p.43.262 doron,i.(2002)‘elderguardianshipkaleidoscopecomparativeperspective‘, 1intllawpolicyandthefamily368,at378-9.therelevantsectionsofthegermancivilcodeare 1902bgband 1897 bgb.also,importantly,caretakermustseekjudicialauthorizationfordecisionswithhighriskorofimportance.see 1902bgb,discussedinblankman,k.99‘guardianshipmodelsinthenetherlandsandwesterneurope‘,20(intllawandpsychiatry 47at 5426 civilcode,para.).26ibidpara. 40/a().26 ibidpara. 14/a(2).266 ibidpara. 15).human rights and guardianship in hungary63human rights standards: recommendation no. r(99)4 provides that measures such as guardianship should be of limited duration if possible and, at the very least, should be reviewed periodically to determine whether the need still exists.267 őis standard is also found in the united nations mental illness principles, which require that, ‘[d]ecisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law‘.268 indicator 29an adult subject to guardianship has the right to request modification and/or termination of the guardianship.conclusion: an adult has the right to request the termination of guardianship at any time. however, he or she may be required to wait for up to űve years in order to modify a guardianship in any way.analysis: őere are diőerent procedures for modiűcation and termination of a guardianship. termination of guardianship is possible if the grounds upon which it was ordered no longer exist.269 őe adult (as well as the guardian or other speciűed people) can initiate this procedure.270 őe applicant bears the burden of disproving the existence of the initial reasons for which an adult was placed under guardianship. such applications are allowed before the mandatory review, which may be as long as űve years‘ time (see indicator 28).271 modiűcation of guardianship is also a court procedure and may be initiated by the same people as those requesting a termination of guardianship (see previous paragraph). a request for modiűcation may be made for one of three reasons: to change from plenary to partial guardianship;to change from partial guardianship to plenary guardianship; or to modify the areas of rights which may or may not be exercised independently by an adult under partial guardianship.272 26 recommendationr(99)principle 14268 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyondecember 1799principle 1(6).269 civilcode,para.). inadditiontothepersonunderguardianship,interestedpeoplewhoareauthorizedto�leanapplicationformodi�cationarethespouseofthepersonunderguardianship,nextofkin,siblings,theguardianhimselforherself,theguardianshipauthorityorthepublicprosecutor.civilcode,paras.(2),).71 civilcode,para.). civilcode,para. 14/a(2).mental disability advocacy center64curiously, it is not possible to initiate the modiűcation procedure prior to the statutory review (of up to űve years).273 adults under guardianship therefore do not have a right to ask for modiűcation of guardianship at the time of their choosing. őey may be required to wait for up to űve years.274 human rights standards: őe right to fair trial in determination of civil rights is set out in article 6 of the european convention on human rights. őe european court of human rights has held that guardianship that aőects someone‘s property rights falls within ‘civil rights‘ and thus falls under the protection of article 6.275 őe european court has also found that guardianship engages article 8 of the convention, on privacy rights, asserting that a re-examination of legal incapacity or guardianship is particularly justiűed if an adult so requests.276 as with several other indicators, it is especially important that the right to review should be guaranteed in legislation, as the lack of an express provision may preclude the adult from accessing the court due to the earlier decision. 73 ibidparas. 14/a),1 andcomments.74 seethecommentsoncivilcode,para. 14/a.75 winterwerp v. the netherlandsapplicationno.6301/73,judgment24october1979,(a/339)ehrr 3 matter v. slovakiahuman rights and guardianship in hungary65. guardianship pracice n hungar.1aims and bjectivesőe principal objective of the stage 2 research was to gain an understanding of guard-ianship practice in hungary. to do this we sought to:document the process of guardianship so as to examine the extent to which actual practice complies with or deviates from the legal framework.describe, in so far as possible, the conditions under which people subject to guardianship live. 2 methodologyas available information on guardianship practice in hungary is so limited, mdac sought to collect as much relevant information as possible and from a broad number of sources. it was planned that these would include national databases, in-depth case studies, a review of case űles, observation of court hearings, and interviews with people under guardianship, their guardians, relatives, and professionals involved in the case. as the research was to take place over a full year, march 2006 to march 2007, mdac hoped that speciűc cases could be followed from the initial application, through the court hearing and for a period thereafter.to obtain a broad but representative overview of the situation, mdac‘s researcher based in hungary sought access to a range of courts/authorities. of the 23 guardianship authorities in budapest, six were selected and approached,277 and one in a secondary city, miskolc.278 two local level courts in budapest and one in miskolc were also approached, as was an appeal level court in budapest.279 all were asked for permission to examine case űles, active and closed, and to conduct interviews. every authority and court which mdac approached agreed to allow the research to proceed. however, this agreement was seriously undermined by the restrictions imposed on the material/documentation to which mdac was given access. 77 theguardianshipof�cesoflocalauthorityinbudapest’snd 3rd 7thth 11thand 1thdistricts. miskolc,bypopulation,isthethirdlargestcityinhungary,butstillsigni�cantlysmallerthanbudapest.itwaschosentoenablebasisforcomparisonofpossibledifferentpracticesoutsidethecapital.inmiskolcthereisonlyoneguardianshipof�cebecausethetowniscoveredbyonelocalauthority. thebudadistrictcourt,thepestcentraldistrictcourt,miskolccitycourtandthemetropolitancourtinbudapest.mental disability advocacy center66mdac asked these four courts for access active case űles. such access was denied verbally solely on the basis of conűdentiality and despite assurances that conűdentiality was to be ensured. a formal review of court űles was therefore limited to those that were closed, that is, where the issues had been decided. in total űfteen closed court űles were reviewed in depth.mdac asked seven guardianship authorities for access to guardianship case űles, but none granted access. őree guardianship authorities went even further than the courts, however, by denying formal access to any űles at all, whether active or closed. a cursory glance at a few űles was permitted simply to allow an impression to be gained as to their typical contents. whilst all cooperation in this research is acknowledged and welcomed, the limit of that cooperation is troubling: troubling in itself and in relation to this report, the űnal outcomes of which have been considerably weakened. notably, the refusals have denied mdac the important opportunity to follow a case from beginning to end, so as to gain a full understanding of the entire process and its impact on those involved. second, the refusals have limited the depth of understanding of those court cases that could be observed, as background information was unavailable. őe research űndings must therefore be read in this light and its limitations recognised. őere were 52 closed court case űles selected for review. in order to assess any changes in the system following the 2001 modiűcation of the guardianship system, a number of cases closed prior to this date were speciűcally sought. őese court űles themselves contained limited information: invariably only a copy of the judgment, which tended to average three pages of a4-sized paper. őese judgments tended to include little more than the judge‘s description of the case (detailed below in greater depth). unfortunately, and surprisingly, additional documents, for example, psychiatric reports, were not included. oral requests for access to these ‘missing‘ documents were refused. őe information gleaned from these closed court űles was therefore limited.a total of 33 court hearings, principally űrst and second hearings of the process by which an adult‘s legal capacity is decided, were observed over the year. again, background information could not be reviewed prior to each case, owing to the deemed conűdentiality of the űles. permission to attend such hearings was not required as, in common with all civil cases in hungary, the hearings were open to the public unless one of the parties speciűcally asked for a closed hearing. a list of guardianship hearings in each month were provided by the court clerk, and from that list, mdac selected some court hearings which the researcher then observed. of those picked, four were closed to public observation. őe reason given for each closure was that a speciűc request had been made by the applicant as a direct result of the presence of a researcher. mdac interviewed six judges, selected from those who presided over guardianship hearings, 17 ocials of guardianship oces of local authorities, nine guardians, human rights and guardianship in hungary67űve people under guardianship, two psychiatrists, and seven ‘case guardians‘, again selected from those regularly attending and so familiar with guardianship hearings. (interview schedules are attached at appendix d)to ensure consistency in all its stage 2 research in each country, mdac developed at the outset data gathering sheets to be used by each researcher (see appendix e of this report). őese were based on the 29 indicators developed to assess guardianship legislation and which can be found in the stage 1 of this report and which are reproduced in list form in appendix b. őe data gathering sheets were used throughout the research process, at court hearings, in the review of court case űles, and, where possible, during all interviews. mdac recognises that as a result of the refusal of both courts and guardianship authorities to allow formal access to űles, the research űndings are not comprehensive. nor indeed do they necessarily provide a reliable or accurate picture of guardianship practice. nonetheless in view of the absence of similar studies and the consequent almost invisibility of the issue, the research does go some way into oőering an insight into how the process of guardianship works in a small number of speciűc cases. equally, and of utmost importance, it also illustrates the importance of further research. full government cooperation and participation must be provided in any future research. it should also be stressed that whilst the ‘űndings‘ are based primarily on the diőerent sources used, the researcher who conducted the work and who prepared the űrst drafts of the hungary reports was immersed in this work for two years. during that period it is inevitable that he, and mdac colleagues working with him, formed a number of impressions about the way in which guardianship is used in practice in hungary. whilst these are not fully documented in what is inevitably a relatively brief report, they have served to inform mdac‘s understanding of the guardianship process and of the conditions in which people under guardianship űnd themselves.3 research findings of guardianship in ractice even if we take into account the diculties of carrying out the research, the over-whelming impression gained by mdac was that of a low level of awareness by all stakeholders involved in the guardianship processes of its human rights implications. őis low level of awareness spanned the procedural process itself, the actual place-ments under guardianship and life thereafter. aspects of particular note arising dur-ing the research are detailed below and cross referenced, where directly applicable, with aspects of the 29 indicators discussed in stage 1 of this report.mental disability advocacy center683.3.1the practice of the guardianship process court őlesas noted, mdac reviewed 52 court case űles. of these, 15 were appeal court decisions. as also noted, all of these included little more than the judgments of the cases, accompanied occasionally by a document certifying the internal delivery of case űles from one court department to another.őe typical judgment found in the court űles, included the following information:date and place of the court hearing.names and addresses of both the applicant(s) and the respondent(s).names of representatives (e.g. attorney or case guardian).names of all persons present at the hearing.őe purpose of the application (i.e. the outcome sought by the applicant).őe court decision.deadline and methods for appealing.reasoning of the decision, usually one to two pages in length, with a description of the circumstances of the case, including extracts from the expert opinions, occasionally quotations from the courtroom dialogues (using reported speech), the impressions of the judge, statements by witnesses, information on the detention of the person (if such measure was ordered) and statement on the lawfulness of notiűcations.court hearingsőe 33 court hearings followed a fairly standard format, although they varied in terms of length and content. őe format of a typical hearing is described below. őe adult concerned (the respondent), the case guardian and the applicant waited outside the courtroom. on occasions adult respondents appeared to be unaware of the purpose of their being at the courtroom and were heard to ask those present to explain. őe judge called the key people into the courtroom. őe judge introduced the case by giving basic information, such as the nature of the case and the names of the parties. őose present were then asked to identify themselves.in 24 cases the judge tape-recorded the hearings, and in 28 a speciűc query was made as to whether the parties were already involved in a court case, or a major dispute, against each other. occasionally, the judge read the main requests of the application and/or asked applicants themselves to describe brie y the purpose of the application. in the majority of cases, the applicant was a representative of the guardianship oce of the local authority. applications made by relatives of the respondents were in the minority.human rights and guardianship in hungary69őe judge sought from each adult respondent present their opinion about the application. őe impression gained during the observations, however, was that the adult respondents were frequently stressed as the result of being in a courtroom, and/or did not understand the situation and its importance. in one particular case the adult even stated that ‘i am not a criminal so that i would be brought in front of a court. i shouldn‘t be here‘.280 it is of particular note that at no time in any of the court hearings observed was written information provided in any case about the procedure itself or about the roles of participants. őe judge then explained, but brie y, the application and the purpose of the case to the respondent adult, and usually summarised the statement of both parties in her or his own words. őe case guardians,281 whose role it is to provide assistance to the adult, were also present in the court room. őey tended to sit alone or next to the adult. in the majority of cases they did not have any papers, and sat behind an empty desk. whilst this is purely conjecture, it is suggested here that this might indicate a failure to prepare the case or even an inability to fully prepare a case in the possible absence of available papers. in 27 hearings observed by mdac, the case guardians failed to demonstrate that they were familiar with their client‘s case. őey failed to participate in the court hearings on behalf of their clients in any meaningful way, such as asking questions of witnesses, or questioning the expert opinion. when the guardianship oce of the local authority was the applicant, which as noted above was in the majority of cases, its representative had a folder and papers on the desk. őe judge then read out the statements of the expert (psychiatric) opinion and asked the applicant and the respondent (or the case guardians) to give their opinion and invited them to submit any further evidence or to share any other relevant information regarding the case. such further relevant information was sparse, particularly on the part of the adult respondent. őe guardianship authority, however, almost always relied on witnesses to support its case, such witnesses usually being family members of the adult respondent, although occasionally friends and neighbours. őese witnesses were called to give oral evidence. when all evidence was heard, the judge either announced the decision of the court or adjourned the hearing and ordered further evidence to be submitted (e.g. another incapacity assessment). when a decision was reached, the judge asked the parties if they understood it, and then described the procedure for appealing. it is notable 280courthearing,mdacreferenceno.60228ongeneralnote,thestatealsoprovidesforcaseguardianinappealcases.mental disability advocacy centerthat the case guardian very rarely objected to a decision, even in the face of an adult respondent‘s own articulated objection. an illustrative example of such passivity of a case guardian is revealed in the following courtroom dialogue in which the applicant was a representative of a guardianship oce of a local authority:judge: őe court‘s decision is that [the respondent]282 needs to be placed under plenary guardianship. do you understand the decision? applicant: yes, i do.adult: i don‘t want to have a guardian, i don‘t want it!case guardian: (silent.)283once a decision was reached the parties left the room and generally dispersed promptly. őe duration of each hearing was between seven and sixteen minutes and the atmosphere was formal.of particular note was the impression that judges often were uncertain about how to communicate with people with psycho-social (mental health) disabilities or intellectual disabilities and did not know how to accommodate their needs during the proceedings. őe adult respondents appeared to have signiűcant apprehension in answering questions. overall, communication in the courtrooms could be described on a number of occasions as inappropriate and inadequate for the needs of speciűc respondents. guardianship authority őlesmdac tried to obtain formal access to case űles held by guardianship oces of local authorities. as noted above, access to such documents was ocially denied by these authorities on the grounds of conűdentiality, despite assurances by mdac to comply with all requirements of hungarian data protection provisions and ensure conűdentiality of all parties involved. nonetheless, as noted, a cursory glance at the contents list of a few űles was granted to allow some insight to be gained as to the typical contents of such űles as follows:court decisions.letters from relatives/friends.expert opinion, documentation from treating doctors.home circumstances report about the living conditions etc. of the adult concerned.282con�dentialityispreservedherebyomittingthenameoftherespondent.28courthearing,mdacreferenceno.6013human rights and guardianship in hungaryinvoices, bills, accounting forms, reports from the guardian.basic information about the appointed guardian.3.3.2 interviewsmdac conducted interviews with the following groups of people involved in guard-ianship proceedings: judges, case guardians (lawyers), prosecutors, guardianship of-űcers, guardians, people under guardianship and psychiatrists.interviews with judgesőe six interviews with judges were based on the data gathering sheets. all interviewed judges expressed an active interest in the research project, and this is to be welcomed. in addition none of the judges questioned the importance of the guardianship cases. however, they did not volunteer information which would demonstrate an acknowledgment that guardianship cases touch on core human rights issues. for example, űve judges interviewed considered the psychiatric opinions as evidence ‘which often has a decisive role‘,284 and claimed that guardianship is used when the adult needs protection. all judges recognised their inadequate specialist training on guardianship issues, and that making such decisions about people‘s lives ‘is a great responsibility‘.285 őey frequently emphasised the importance and fulűlment of adequate procedural aspects, for example fair trial rights. several judges mentioned the need to harmonise hungarian legislation with european law. in this context it is surprising that the most senior judge does not share the views of those lower down the judicial ladder. őe president of the supreme court in a letter to mdac stated that the council of europe committee of ministers recommendation no. r(99)4 was considered when the law reform took place in 2001 and ‘basic contradictions between the recommendation and the legal capacity and guardianship related provisions of the hungarian civil code do not exist‘.286 interviews with case guardianscase guardians are appointed by the judge at the beginning of the court proceedings. őey are either a representative of a law űrm or ‘practice‘ as attorneys in sole practice. of the seven case guardians interviewed, three deűned guardianship cases as ‘not the most important issue‘ in their practice, but described such court procedures as important ones. 28 interviewwithjudge,mdacreferenceno.20028 interviewwithjudge,mdacreferenceno.200286 lettertomdacfromdr.zoltánlomniczi,thepresidentofthesupremecourt,28march200mental disability advocacy center72when questioned as to issues they felt to be problematic, a number identiűed the eligibility criteria for applicants. őe civil code makes it possible for people to initiate placement under guardianship for their spouse and there was a clear recognition that this leaves the system open to abuse. in the words of one case guardian, ‘it happens relatively often that the spouse, who no longer has a good relationship with the adult, initiates the procedure for deprivation of legal capacity. but the purpose in those cases is not protection but rather to take over the adult‘s assets‘.287 mdac‘s impressions from a number of observations of the court hearings had raised similar suspicions, although these impressions cannot be substantiated by speciűc court dialogue. when asked for their view of their speciűc role, all case guardians deűned it as ‘to protect individuals and to protect their interests‘.288 when they were questioned about their passivity, they responded by asserting simply that their role was a ‘formal‘ and ‘a legal guarantee‘.289 interviews with oűcials of guardianship oűces of local authoritiesmdac interviewed 17 ocials of guardianship oces of local authorities. all in-terviewees described their job as a protective mechanism for those under guardian-ship. when asked about the shortcomings of the system, a common answer was the criticism of the regulation of the amended civil code,290 which makes it possible for adults under partial guardianship to dispose of 50% of their income291 indepen-dently. one guardianship ocial said that ‘the independent disposal of the 50% is dangerous and should be abolished. őis would serve best the adult‘s interest‘.292 by this, interviewees referred to adults probably being reckless in their spending or be-ing open to exploitation by others, including relatives.under hungarian law, a compulsory judicial review of the necessity of guardian-ship should take place no later than űve years from the original court decision of placement under guardianship. őis review is obligatory unless the adult‘s condi-tion is deemed to be ‘permanent‘ at the time of the incapacity assessment. when questioned on the possibility of modiűcation of the type of guardianship (e.g. from plenary to partial guardianship or vice versa) prior to this compulsory review procedure, guardianship authority ocers gave contradictory answers. some of-űcers believed it possible to initiate a procedure for modiűcation prior the com-pulsory review and some felt this legally impossible (see further, discussion under indicator 29 of legislative review in section 3, above). 28 interviewwithcaseguardian,mdacreferenceno. 11288 interviewwithcaseguardian,mdacreferenceno.8.289 interviewwithcaseguardian,mdacreferenceno.8.290 thiswasmentionedin 11 differentinterviews.29 derivedforinstancefromstatepensions,bene�ts,etc.292 interviewwithguardianshipauthorityof�cer,mdacreferenceno.7004.human rights and guardianship in hungary73interviews with guardiansmdac interviewed nine guardians (seven professional and two family guardians). all of the professional guardians oőered their own proposals for amending the guardianship system. őey suggested for instance that guardians should be given greater power. őree highlighted the practice of multiple guardianships under one guardian as being problematic in certain cases. in law one professional guardian can be responsible for a maximum of 30 adults. however, there is no national register for professional guardians, which makes abuse of the system possible by the taking on of more of than 30 clients. as payment is received for each adult under guardianship293 (varying between approximately 1,600 huf and 6,500 huf per person),294 this abuse of the system might seem attractive to certain guardians. evidence suggests that this abuse is particularly prevalent in rural areas.295 one speciűc example of the extent of this practice was given as that in szentgot-thárd, a town in western hungary which hosts hungary‘s largest social care insti-tution, with over 700 beds. everyone accommodated in that institution is under guardianship. of these, approximately half are under the supervision of only two professional guardians.296 őis brings into serious doubt the ecacy of the guard-ianship role, in situations when a guardian cannot possibly give the adults the individual attention necessary to provide an eőective service. some of the guardians interviewed also re ected on the fact that once an adult is placed under guardianship it is almost impossible for the guardianship order to be removed. one professional guardian explained, ‘during my nine years‘ experience as a professional guardian, in only one case was the guardianship terminated out of the 174 cases with which i have dealt‘.297 guardians in general agreed with the ocials who work in local authority guardianship oces, noted above, who suggested that the ability of those under guardianship to dispose of 50% of their income should be abolished.298 an illustrative example of their reasoning is that the system ‘gives these people too much freedom which they cannot use in a meaningful way‘.29929 thisappliesiftheguardianispaidonthebasisofthenumberofpersonsunderhis/hersupervision.theotherformofpaymentisthattheguardianreceives�atmonthlyfeefromthelocalmunicipality.29 thisisbetween6.5 and26.2euroatthe 1 may2007 exchangeratesofthehungariannationalbank.29 interviewwithguardianshipauthorityof�cer,mdacreferenceno.7003.296 interviewwithprofessionalguardian,mdacreferenceno.6002.29 interviewwithprofessionalguardian,mdacreferenceno.6002.298 interviewwithprofessionalguardian,mdacreferencenos.6002,600600600299 interviewwithprofessionalguardian,mdacreferenceno.600mental disability advocacy center74interviews with people under guardianshipmdac conducted űve interviews with people under guardianship, with the full permission of their guardians and active assistance of other organisations representing or helping people with psycho-social (mental health) disabilities or intellectual disabilities.300 in general the interviewees‘ level of functioning allowing active participation in the interviews was good: they understood the questions and replied in a focused way. nonetheless, their diagnosis was unknown as their case űles could not be reviewed and they themselves could not detail speciűcally the reason for their placement under guardianship. an illustrative example of an adult under guardianship not knowing the reason for the guardianship is given in the words of an adult living in an institution and undergoing the procedure to deprive him of legal capacity: adult: őe doctor came and saw me, he examined me.mdac: was it because of your court hearing?adult:yes.mdac: so, why do you need a guardian?adult:i need some help.mdac: why do you need help? what is your problem?adult:i don‘t know. mdac:did the doctor tell you what the problem is?adult:no. 301most of the interviewees were able to express their opinion about their guardianship in a straightforward way, and their experiences of guardianship were vividly detailed. notably, the majority of the issues raised in the 29 indicators were touched upon directly or indirectly. őese are not detailed in length in this brief report. however, the exchange repeated below between mdac‘s researcher and an adult under plenary guardianship having been so placed eight years ago, is a succinct example of how guardianship impacts upon the lives it touches: mdac: is there anything that you cannot do because of guardianshipwhich you would like to do?adult:yes, i am a conservative person and i want to vote in the elections but i am not allowed to. i often read about politics.00 theresearchwasassistedbyéfoész(hungarianassociationforpersonswithintellectualydisabilities)andéno(day-timecarecentreforpersonswithintellectualdisabilities)ofthe2nddistrictofbudapest. interviewwithpersonunderguardianship,mdacreferenceno.9002.human rights and guardianship in hungary75mdac: is there anything else that you cannot do?adult:i have a girlfriend. and i like her very much. later, i want to marry her, but i was told that i can‘t do it. and i want to buy her gifts, but i don‘t have money. i used to work, but then later we were told in the home that people under guardianship cannot sign an employment contract and i lost my job. i need the money, i would like to work…302őis brief exchange therefore touched on the prohibition on people under guard-ianship from exercising the right to vote, to work, to marry and to manage prop-erty. őis adult now lives in an long-stay institution, although he said that he owns property which he cannot live in. he explained that when his mother died, his father initiated his placement under plenary guardianship and is now living in ‘his‘ property. interviews with psychiatristsőe two psychiatrists interviewed regularly carry out incapacity assessments for guardianship cases. őey were selected randomly from a list of 165 court experts, a list available from the website of the ministry of justice.303 both emphasised the importance of the incapacity assessment in guardianship proceedings. when asked about the link between the diagnosis and guardianship, they responded by emphasising that all they can rely on in capacity examinations are the two brief sections of the civil code on the reasons for placement of someone under guardianship (see relevant sections on indicator 7 and 8 of the legislative analysis and also below). őey conűrmed that they are familiar with the icd-10 diagnostic system (international classiűcation of diseases, a united nations system of classiűcation used by many practitioners), which they used in their practice. placement under guardianship was described again as a protective measure and they both claimed to conduct all incapacity assessments through an in-person meeting with the adult concerned. 4 general bservations and conclusionsin making any general observations and in arriving at any general conclusions, mdac emphasises that this is very much a preliminary report and the űndings and impressions gained should be substantiated by further research. mdac also emphasises that a number of people interviewed and observed during the two years of research demonstrated a genuine commitment to assisting those undergoing 02 interviewwithpersonunderguardianship,mdacreferenceno.900 see:http://im.netforum.hu/isznyr/internet/session/pa02;jsessionid=mpivisg?nf=&tkf=&szf=pszichi%c%atria&szn2f=&szkf=&szk2f=&kf=&t=,lastaccessedon 1 may200mental disability advocacy center76guardianship proceedings, and a commitment to improving the eőectiveness of that assistance. őose judges interviewed, for instance, were very willing to share their experiences and thoughts on their role in the proceedings. also, in notable instances, they, and case guardians, clearly questioned the adequacy of evidence placed before the court, and therefore the necessity of guardianship. as noted below, however, such questioning appeared not to be the norm.őe year-long research into the guardianship practice in hungary has allowed a general insight into a system that purports to protect those it serves. on occasions it undoubtedly does. however, from information available, the overwhelming impression is that all actors in the guardianship process underestimate the relevance and importance of human rights in that process. őis is turn undermines the entire guardianship process and negates in many ways the examples of genuine and professional engagement with the issue.of particular note was the low level of knowledge of existing hungarian guardianship law and regulations and also of human rights law and requirements, even for those involved in the guardianship process on a day-to-day basis. őree illustrative examples are given. first, one guardianship authority ocer was unaware of the maximum number of people that one professional guardian can legally supervise under the law.304 in another instance, a case guardian did not know whether people under guardianship were permitted to make a will independently.305 possibly of greater concern, however, is the general low level of awareness of many relevant professionals of the national disability programme, adopted in 2006 by the hungarian parliament. as noted elsewhere in this report, the programme sets out a framework for a system far less restrictive than plenary guardianship, this being supported decision-making. more speciűcally, it is notable that of the three categories eligible to make an application for appointment of a guardian,306 it is typically members of the adult‘s family that initiate the procedure – either by themselves or by advising the guardianship authority of the need of placement under guardianship. once aware of the ‘need‘ of guardianship, the guardianship authorities are obliged to initiate an application if the relatives (or other parties as deűned in law) do not submit an application to the court within a set time period (60 days). if the guardianship authority is involved, the representative of the guardianship authority acts as the applicant before the court, the relatives acting as witnesses in support of the application.as noted in section 3 of this report, the legislative basis upon which an application can be made is vague. őis vagueness is re ected in the reasons given in support of applications. őese tend to vary. for example, descriptions of the adult‘s health and/or interviewwithguardianshipauthorityof�cer,mdacreferenceno.1002. interviewwithcaseguardian,mdacreferenceno.60006 seefurther,discussionunderindicatorinstage 1 ofthisreport.human rights and guardianship in hungary77mental condition provided to the court included assertions of schizophrenia, person-ality disorder, dementia, epilepsy and intellectual disability, either alone or combined. in addition references were made to űnancial problems and an inability to recognise the value of money. in one case, the (unsuccessful) applicant was the adult herself, who sought a űnding of incapacity in order to avoid a property sale agreement, entered into some time earlier.307 although legislation provides for an adult to receive actual notice, and to be present and heard at all proceedings related to the application for deprivation of his or her legal capacity,308 concern has been raised as to the implementation of this provision in practice. notices of an application and subsequent court procedures for placement under guardianship are sent to the adult concerned by way of regular, registered mail to the home address or to the social care institution in which they are accommodated. a number of professionals, including judges, case guardians and professional guardians, voiced speciűc concern at the lack of protection built in to the notice system to ensure the adult receives court letters (they may be intercepted for example by applicant relatives) and understands their content.309 of the 85 cases reviewed, in only 53 was the adult present at the court hearing (the adult was normally present at appeal hearings). őe reason for each absence was either unknown (which simply means that the adult did not attend the court hearing and the court received no information on his/her whereabouts), or that the court was told by the psychiatrist in the expert report that the adult‘s health condition prevented attendance (in 14 cases). in these instances the court adjourned the hearings to another date.as noted earlier, there is no written information available about the nature of guardianship hearings for people undergoing such proceedings. in practice it re-mains the judge‘s role to explain how the reason for the hearing and how it will proceed. in most cases observed, the judge attempted to fulűl this role. examples of typical questions heard were, what is your name? how old are you? where do you live? who do you live with? do you work? do you know how much a litre of milk costs? what date is it today? as noted above, however, the impression gained from the hearings observed was a distinct discomfort on the part of judges in communicating with people with psycho-social (mental health) disabilities or intellectual disabilities. őe suggested peculiarity of the role of the case guardian, often a lawyer but acting as a non-legal representative of an adult respondent, discussed under indicator 4 of section 3 of this report, was re ected in the űles reviewed and the hearings observed. although under a vague obligation to assist their clients, they frequently appeared observationofcourthearing,mdacreferenceno.12.08 seefurther,discussionunderindicator 3 instage 1 ofthisreport.09 interviewwithjudge,mdacreferenceno. 300mental disability advocacy center78to fail to take a proactive role at all on behalf of their clients. őis was abundantly clear in 72 cases of the 85 cases reviewed/observed. in 63 of these, the case guardian made no active contribution, for example, by putting forward any argument or questioning witnesses. further, in most cases the case guardian did not express any objection against placing their clients under guardianship, despite objections of their clients.őe impression gained following the observations was a typical scenario where a case guardian would arrive at court without any previous consultation or sometimes even without any previous communication at all with the adult concerned. even in űles reviewed where reliance had to be placed on brief written judgments alone, it was clear that few questions or concerns were raised by the case guardian during the proceedings. participation of case guardians, appointed by the court, is free for the adult concerned. in addition, all related costs are borne by the state. although the right and opportunity to present evidence, and challenge that of others, is constitutionally and legislatively guaranteed,310 for adult representatives this rarely takes place in practice. observation of court cases and reviews of the closed case űles indicate that one possible explanation of this was the failure to provide adults subject to guardianship proceedings with appropriate assistance to allow them to take advantage of such provisions and to navigate the court process. for instance, in 44 of the 85 cases, adults objected to placement under guardianship. objections tended to be by way of simple verbal assertions, for example, ‘i don‘t need a guardian‘ or ‘i don‘t want to be placed under guardianship‘ or ‘i object‘. being unfamiliar with court proceedings, they also tended to be simply unaware of their right to present their own evidence or to challenge that of the applicant. it was invariably left to the judge to explain the procedural rights and help adults understand and express their views on the case. of equal concern was the unawareness, in some cases, of the very purpose of the court hearing. őe general vulnerability of such adults in this respect is further compounded by the failure of the hungarian government to ensure adequate assistance and representation before and during guardianship proceedings, this failure starkly illustrated by the passivity of most case guardians. in direct contrast to the position of those who stand to lose their legal capacity, and consequently, numerous rights, are the applicants. indeed, the hearings observed showed that applicants had, and took, numerous opportunities to present and challenge evidence. of particular note was the frequency with which they presented witnesses in support of their application, those witnesses invariably being relatives of the adult respondent. 31 seefurther,discussionunderindicator6.human rights and guardianship in hungary79in all observed hearings the judges appeared to have requested a psychiatrist to prepare an incapacity assessment, and to have that assessment before them.311 as to the role played by those assessments, research űndings make it quite clear that they are decisive in most guardianship decisions. indeed in 82 of the 85 cases reviewed, as court hearings or by way of űle review, the judge followed the psychiatrist‘s assessment. however, in none of the court hearings observed was the psychiatrist actually present. it is clear therefore that psychiatric evidence is rarely questioned. őis is extremely troubling and substantiates the concern raised under the discussion of indicator 8 of stage 1 of this report, of the lack of legislative provision requiring a link between a diagnosis and alleged inability to make independent decisions. a notable exception, however, given in greater detail below to illustrate a second point, concerned a hearing where a case guardian speciűcally sought an opportunity to test the expert opinion. in response the presiding judge ordered a second hearing to which the medical expert was summoned to attend in person.312in every case examined by mdac, the expert opinion speciűcally referred to the wording of the civil code in terms of reasons and grounds for a űnding of incapacitation – sometimes word for word. invariably, however, the existing diagnosis served as the principal ground for the űnal decision. as noted, of the 85 cases reviewed, in only three did the judge decide against the expert opinion.313 an example where this occurred is given below, and serves also to highlight a rare instance of a case guardian taking an active and informed part in the proceedings. in this instance the case guardian questioned the witness (the adult‘s sister) who had asked the guardianship authority to initiate a procedure for placement under guardianship. őe case guardian (in direct contrast to those in most of the hearings observed) asked her about the health status of the adult concerned:judge: so do you live with your sister in the same household?witness:yes, i do. i take care of her, because she is not able to communicate with the world outside. she needs my help, sheis in a very bad condition.case guardian:what do you mean by bad condition?witness: she is not talking to anyone. i think she cannot talk because of her illness. she is unfortunately not 100% in her mind.case guardian:so you say that she cannot speak. but does she understand what you tell her?witness: yes, she does. but she is very sick.case guardian:maybe she is still ‘100% in her mind‘, but she cannot speak only. it is possible that actually inside, she is totally capable 311 seefurther,discussionunderindicator 731 observationofcourthearing,mdacreferenceno.4.313 inthesecasesthejudgesbasedtheirjudgmentsonthecircumstances.mental disability advocacy centerof understanding everything that is happening to her. have you ever heard the phrase ‘aphasia‘ for example? did the treating psychiatrist say something like that to you? witness: no. case guardian:because such disease exists: when you cannot talk but can actually understand and realise everything. i would like torequest another expert opinion from the court.314őe result of this exchange was that the judge postponed the űnal hearing until receipt of a second incapacity assessment. at that űnal hearing, the court rejected the guardianship authority‘s application to place the adult under guardianship. a clear implication of this example is that the performance of a case guardian can directly aőect the outcome of hearings. consequently, if case guardians are encouraged to take an active role in court hearings, the imposition of often inappropriate guardianships might be reduced. finally, in another notable case, the judge asked comprehensive questions about the adult‘s living circumstances. őe judge‘s űnal decision rested upon the answers to these questions, rather than solely on the medical evidence. őe judge‘s decision stated that although the adult before him had a ‘mental disorder‘, he was able to shop alone and to take care of himself without assistance, bills were paid regularly, so he did not need to be placed under guardianship.315 őe importance of a right of appeal of any court decision cannot be overlooked. indeed this is recognised under hungarian law which makes provision, as previously noted, for adults deprived or restricted of legal capacity to appeal that deprivation.316 similarly adults have a right to express an objection to appointment of a guardian.317 as noted above, of the 85 judicial decisions reviewed or observed, there were indica-tions that 44 were to be appealed, and/or the adult concerned expressed an objection against the placement under guardianship. it is dicult to estimate the exact number of formal appeals that were eventually submitted in view of the inability to review ac-tive űles. from the closed űles reviewed, however, it is clear that, of the appeals made, two thirds of the appeal decisions approved the original decision of the court of űrst instance. it should be noted that, based on comparisons with the closed űles, the impression gained of court observations was that when observed, judges were more precise about following the rules of procedure. őe relevance of this point is that those minority appeal judgments that did overturn the űrst instance decisions tended to be reasoned on the basis of procedural grounds 314 courthearing,mdacreferenceno. 17315 courthearing,mdacreferenceno.31 civilprocedurecode,para.33).seealsodiscussionunderindicator 1ofstage 1 ofthisreport.317 civilcode,para. 19/a().human rights and guardianship in hungary(for example, missing procedural deadlines) and of ignorance of some relevant and important facts (for example, when the parties are already in a serious, often legal, dispute at the time of the guardianship application). in such instances the appeal court can order a second hearing, or decide the matter based on the documents. as noted in section 3 of the report, a guardian has a broad discretion to take legal action of behalf of an adult, although if that adult is able to express a view or make a request, this view must be taken into account.318 notable in this respect was that in many of the cases observed and reviewed, the perceived ‘best interests‘ of adults appeared to be the deciding factor in the majority of decisions taken on their behalf. in addition, although all guardians interviewed indicated their belief in the importance of consultation with adults under their protection – and those under guardianship interviewed by mdac indicated that they did meet regularly with their guardians – it became apparent that in plenary guardianship cases in particular, the guardians generally felt that they ‘knew better what was best for the adult‘.319 connected to this rather discretionary and paternalistic approach is the failure of legislative provision to limit and deűne this broad discretion. őis is re ected in practice where it was observed that the depth in which the scope of authority and obligations were deűned, diőered depending on the issue concerned. financial management is subject to the greatest deűnition. őe lack of guidance on other less regulated issues serves simply to create uncertainty for those involved. professional guardians were very conscious of this uncertainty and commented that their duties should be better deűned.320 in their view this could be achieved via training, which although it already exists, is in the opinion of one guardian, ‘more theoretical than practical‘.321 four other guardians concurred with this view.mdac‘s researcher had the opportunity to attend in spring 2005 the four-day training to which the guardians referred and also concurred with the view of its theoretical, rather than practical, nature. participants of the training received in-depth lectures on the guardianship system and authorities, and an introduction to property law and other family law related issues. only half a day was devoted to issues relating speciűcally to people with intellectual disabilities and psycho-social (mental health) disabilities. of note however, and again connected to the exercise of the discretion of guard-ians, was that of the guardianship authorities‘ approach to their supervisory role. all guardianship oce representatives interviewed for this research appeared to approach their supervisory role strictly. őey are entitled to seek ad hoc account-ing and reporting on the status of the adult concerned and that adult‘s assets. one 31 seefurther,discussionunderindicator 1ofstage 1 ofthereport.31 interviewswithprofessionalguardians,mdacreferencenos.6002and6009.20 interviewswithprofessionalguardians,mdacreferencenos.6002and600 interviewwithprofessionalguardian,mdacreferenceno.6002.mental disability advocacy center82guardian said that that some local authorities ask for such a report every month or even more frequently.322examples have been given above of inadequate legislation re ected by inadequate practice, and adequate protective legislation working inadequately. in contrast is inadequate legislation, which in practice is rarely followed. one example relates to the legislative provision for detention for the purposes of the incapacity assessment.323 despite this, in only three of the 52 closed cases reviewed were inpatient incapacity assessments ordered. őe bases upon which these orders were made were the following. first that the adult was already in psychiatric care and the treating psychiatrist was of the opinion that this was necessary; and second, there was a reported unwillingness of the adult to undergo an incapacity assessment voluntarily. finally, it is particularly troubling that guardianship appears to be greatly overused, as suggested by – if nothing else – the sheer numbers of people: 66,000 adults in hungary. another contributing factor for this high űgure may be the signiűcant lack of awareness that guardianship is not automatically appropriate simply on the basis of disability or institutionalisation. őis lack of awareness is combined with a lack of availability of less restrictive alternatives to guardianship. indeed when asked speciűcally about alternatives, few of those interviewed were able to identify any, and were unaware of the concept of, for instance, supported decision making or individually tailored systems of support. 5 general comments and the eed for further researchwe begin this section with a general, but vitally important comment: governments should not embark on legislative or policy reform unless such reform is based upon, and informed by, a thorough understanding of the issues it seeks to address. mdac‘s research is only the űrst step towards reaching that understanding. unfortunately, in this instance research was not facilitated as greatly as it might have been by those responsible for implementing such legislation and policy. mdac therefore urges the hungarian government to encourage, cooperate with and participate in future research. őis will allow instances of good practice to be identiűed, but also weaknesses that should be addressed. unless such research is allowed to take place and the űndings are acted upon, hungary will continue to fail to meet its international legal and moral obligations towards people with psycho-social (mental health) and intellectual disabilities. more speciűcally, the denial by the guardianship authorities of access to their case űles on the basis of conűdentiality, despite assurances that conűdentially would be 22 interviewwithprofessionalguardian,mdacreferencenos.6002andinterviewwithguardianshipauthorityof�cer,mdacreferenceno.1003. seefurther,discussionunderindicator 5 ofsection 3 ofthereport.human rights and guardianship in hungary83appropriately honoured, is troubling for two principal reasons. first it ensured that no full picture could be obtained of the manner in which the guardianship authorities deal with guardianship cases. second, and on a more general level, such a refusal should be considered in light of the fact that legislation itself fails to ensure adequate supervision of those authorities. őus both legislation and practice suggest that the guardianship authorities‘ work is inadequately monitored.equally troubling was the inability of mdac to follow cases from beginning to end, and so obtain a holistic overview of the working of the system. őis was the direct consequence of being granted access to closed cases only. as a result, only a disjointed picture could be gained and the manner in which all participants (eg. people under guardianship, expert and lay witnesses, family members, judges, lawyers, guardianship authority ocers) in the system interacted, and the impact of that interaction, was impossible to assess accurately. őe impact of these constraints on conclusions that can be drawn and recommendations based upon these conclusions is clear. mdac is conscious that this research only touched the surface of the views and feelings of participants in the guardianship system, principally as a result of the limited number of interviews undertaken of those under guardianship and their families. őese few interviews however have clearly highlighted many diculties faced by these groups, and suggest that further research into their direct experiences must be carried out.as guardianship touches so many diőerent areas of life, there are several additional issues that require more detailed analysis. perhaps the most pressing of these include the denial of employment for people under guardianship, the training of guardians, the role of the guardianship authority, the lack of meaningful and eőective participation by lawyers, and the role of the psychiatrist. őese professionals have enormous power, as there is a clear and direct link between the opinion of a psychiatrist and a judge‘s decision. mdac‘s earlier work on court reviews of criminal psychiatric cases in hungary, resulting in its 2004 liberty denied report, revealed a similar link.324 in order for hungarian citizens to be assured that their justice system is objective and non-arbitrary, considerably more research needs to be carried out into how psychiatrists carry out incapacity assessments, and why it is that judges almost automatically accept their conclusions as scientiűc truth. a űnal point made on the issue of the need for further research links clearly into a february 2006 supreme court decision,325 where it was emphasised that a medical diagnosis alone cannot serve as a basis for depriving a person of legal capacity. further research should now be carried out to see if this principle has been adopted in practice, and if so, to what extent. thisreportisavailablefrommdac‘swebsite,www.mdac.inf supremecourtdecisionno. 4of2006.mental disability advocacy center84mdac is pleased to note that during the course of its research a number of non-governmental organisations, primarily those comprised of people with disabilities, acknowledged the importance of guardianship and its human rights implications. mdac urges hungary to support these ngos in order to allow them to strengthen and continue their vital work on this issue. on 30 march 2007 hungary signed the un convention on the rights of people with disabilities. a principal component of this convention is an obligation upon countries to implement alternatives to guardianship. mdac hopes therefore that the hungarian government will now demonstrate a dual commitment: a commitment űrst to remedying human rights abuses created by the current guardianship system, and second to drive through policy reforms to establish meaningful and workable support systems for people who need assistance in making decisions. mdac will continue, in the spirit of cooperation, to oőer detailed recommendations to the government, and monitor compliance with the promises the hungarian government has already made to its own people and to the international community. human rights and guardianship in hungary85nnex aglossary of erminologyadult: an adult is a person who has reached the legal age of majority, which is 18 in hungary.capacity: a legal term embodying the notion that for a person to make decisions and take actions that have a binding, legal eőect, he or she must have the requisite mental state – the ability to understand the decision presented, consider alternatives, appreciate the consequences of the decision and communicate the decision. őe terms ‘capable‘ and ‘competent‘ are frequently used interchangeably. defendant: in many countries, the person who faces capacity determination pro-ceedings and/or guardianship proceedings is called the defendant. in other countries, the term ‘defendant‘ is used primarily in criminal proceedings. since capacity and guardianship proceedings are not criminal in nature, mdac has chosen to avoid confusion by avoiding use of the term ‘defendant‘ and refers instead simply to the ‘adult‘.intellectual disability: őis phrase refers to people who have intellectual limitations of varying types and degrees. some countries use the term ‘learning disability‘ instead. however, as with the phrase ‘mental health problem‘ (see below), the literal translations into english from the national languages of our target countries may be outdated and pejorative (for example, terms such as ‘mental retardation‘, ‘imbecile‘, ‘abnormal comprehension‘, ‘idiocy‘, ‘weak mind‘ and so on). őerefore, mdac has elected to use ‘intellectual disability‘ in lieu of all such terms. guardian: a guardian is an individual appointed by the appropriate entity to act in the place of a person who lacks legal capacity to handle his or her own aőairs and welfare. őe appropriate entity may be either a court or a guardianship authority, depending on the jurisdiction and/or the type of case. őe guardian may be a relative, a professional guardian or any other person authorized under national legislation to act in this capacity on behalf of a person who has been deemed to lack capacity. guardianship: a legal relationship established through a court or administrative process between a person deemed to lack (either partially or completely) the requisite legal capacity to make personal decisions and the person appointed to make decisions on his or her behalf. guardianship is also sometimes referred to as ‘substitute decision-making‘. guardianship is one form of ‘protective measure‘ referenced by the council of europe committee of ministers in recommendation no. r(99)4. mental disability advocacy center86mental disability: őis umbrella term is applied to people who have been diagnosed with, or labelled as having, mental health problems and/or intellectual disabilities. mental health problem: (see ‘psycho-social disability‘) partial guardianship (or limited guardianship): type of guardianship established when a person who has some capacity to make decisions or take action on his or her own behalf and is deemed to have partial capacity. what a person may or may not be allowed to do for himself or herself when under partial guardianship is a matter for national legislation and/or courts to decide and will vary from country to country or within the same country. plenary guardianship: type of all-encompassing guardianship established when a person is deemed to lack capacity completely or lack sucient capacity to take any actions on his or her own behalf. plenary guardianship is the most encompassing form of guardianship. psycho-social disability: an admittedly broad term meant to include people who have been diagnosed, labelled or perceived as suőering from a mental illness, and can include people with personality disorders. people with psycho-social disabilities are sometimes referred to as having a ‘mental disorder‘, ‘mental disease‘ or ‘mental defect‘. for purposes of this report, all such terms are translated by mdac as ‘psycho-social (mental health) disability‘, a term which re ects ‘psycho-social disability‘ which is used by the global organization world network of users, ex-users and survivors of psychiatry, and one which adds ‘mental health‘ in parentheses for those readers not familiar with the newer term of ‘psycho-social disabilities‘. supported decision-making: őis alternative to guardianship is premised on the fact that with proper support, a person who might otherwise be deemed to lack capacity is, in fact, able to make personal decisions.trustee: although its speciűc meaning will be deűned in law, in general terms, a trustee is a person who maintains a űduciary relationship to another person. in some jurisdictions, the term ‘trustee‘ is used interchangeably with guardian, but in other jurisdictions (including, for example, bulgaria), it is used only for certain relationships, such as in cases of partial incapacity. ward: őe term commonly used in english-speaking countries to refer to a person who is under guardianship. mdac prefers not to use this term as it dehumanises the individual. instead, we simply use ‘adult‘ or ‘person concerned.‘human rights and guardianship in hungary87nnex bummary able of the indicatorsindicator 1legislative purpose or preamble to the law encompasses respect for the human rights, dignity and fundamental freedom of people with mental disabilities.indicator 2the legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it.indicator 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.indicator 4an adult has a right to free and effective legal representation throughout guardianship proceedings.indicator 5an adult may not be detained in order to be subjected to an evaluation of his or her legal capacity.indicator 6an adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses).indicator 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.indicator 8a finding of incapacity requires a demonstrable link between the underlying diagnosis and the alleged inability to make independent decisions.indicator 9a finding of incapacity is based upon sufficient evidence and serves the interests of the adult.indicator 10selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered.mental disability advocacy center88indicator 11the guardian should not have a conflict of interest with the adult, or the appearance of such a conflict.indicator 12an adult has the right to appeal a finding of incapacity and/or the appointment of a guardian.indicator 13by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise political rights.indicator 14by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to work.indicator 15by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to property.indicator 16by 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.indicator 17by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to associate.indicator 18a person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity.indicator 19an adult subject to guardianship must be consulted about major decisions, and have his/her wishes adhered to whenever possible.indicator 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.indicator 21a 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.human rights and guardianship in hungary89indicator 22the guardian must manage the assets of the adult in a manner that benefits the adult under guardianship.indicator 23the guardian is obliged to visit and confer with the adult periodically.indicator 24a guardian‘s decisions are periodically reviewed by an objective body and the guardian is held accountable for all decisions.indicator 25a complaint procedure exists that triggers review of guardian‘s acts or omissions.indicator 26less restrictive alternatives to guardianship are available and are demonstrably exhausted before a guardianship is imposed.indicator 27guardianships are tailored to the individual needs of the person involved and address the varying degrees of capacity.indicator 28guardianship is periodically reviewed and continues only as long as appropriate.indicator 29an adult subject to guardianship has the right to request modification and/or termination of the guardianship.mental disability advocacy centernnex crotocol for researchers on rotection of research data and articipantsintroduction őe purpose of the stage two in the guardianship research is to gather information on the practical application and the implications of guardianship legislation and frameworks on adults under guardianship. researchers will attempt to hold interviews with adults under guardianship, or who are going through court processes related to guardianship. gathering of data in this manner is necessary to fully understand and document the reality of the guardianship system by those aőected by it. őe world medical association declaration of helsinki: ethical principles for med-ical research involving human subjects (revised 2000), while speciűcally applying ethical principles to medical research on human subjects, also provides guidance for less intrusive research involving vulnerable human beings as subject-participants as well. article 5 of the declaration states that ‘considerations related to the well-being of the human subject should take precedence over the interests of science and society.‘ őis approach informs the collection and handling of information by mdac.handling personal data oversight by mdac maintenance and use of the data collected from individuals during the empirical stage of the project will be overseen by an assigned mdac staő member and the guardianship advisory board, to ensure that use of the collected data is protected and directed towards improving the well-being of people under guardianship as well as people likely to be placed under guardianship. protection of collected informationeach researcher must devise a number-based data storage system to protect the information (including any personal notes, records or other information) that is gathered from any source, by any means, throughout the course of the research project. őe key to the numerical system will be maintained in a diőerent location than the actual research data and will be available only to the researcher and the assigned mdac staő member. human rights and guardianship in hungaryrequired disclosures to participantsrecognising that individuals who reside in closed institutions often have few visitors and little contact with the outside world, it is possible, if not probable, that researchers may encounter research participants who speciűcally ask for assistance from the researcher. because of this possibility, before a researcher begins an interview with a research participant, the researcher must inform each participant of the following: őe purpose of the research. considering that many participants may have dif-űculty comprehending the potential risks and beneűts of participating in research, particular attention must be paid to providing an explanation of potential risks and beneűts in a language and format that is both comprehensible and tailored to the needs of each individual participant. őe voluntary nature of the research. individuals have the right to refuse to participate (or to refuse to answer any particular question) or to withdraw from participating at any time. researchers must directly ask each potential participant whether he or she consents to participating in the research and to the recording of personal information for use in the project. if an individual refuses or withdraws consent, all information pertaining to that individual must be deleted from project records.őe role of the researcher. researchers should explain to participants that the researcher‘s role is one of information gathering and that the researcher is not per-mitted to provide legal advice or representation to research participants. őe conűdentiality of research data. researchers must explain to participants that any information that a participant chooses to share will be maintained by the researcher and by mdac in a conűdential manner. it should further be explained that the information eventually may be disclosed in mdac‘s published report and that, if included in the published report, it will be anonymous; i.e., no personally identiűable information or statement will be included in any published report. őe interviewing conditions. interviews must be conducted in a private and conűdential manner, out of earshot of others, and with no additional person present, unless requested and authorised by the participant. exceptions to conűdentiality/anonymity. before conducting any interview, the researcher must explain to participants that if during the course of the interview the participant discloses (or the researcher observes) information that suggests the participant is at substantial risk of signiűcant harm, that it may not be possible for the researcher to keep such information conűdential or anonymous. mental disability advocacy center92procedure following disclosure suggesting a substantial risk of significant harmif a participant makes disclosure suggesting a substantial risk of signiűcant harm during the course of the interview or otherwise, the researcher must again inform the participant of the need to notify an appropriate person(s) or authority (such as police, relevant governmental authority or institution director) who can intervene to stop the harm. exercising his or her own judgment, the researcher must decide whether it is suciently imminent to notify police or staő in person, gather as much detail as possible about the situation and then contact the mdac staő member responsible for the project as soon as possible to discuss how to proceed. non-emergency requests by research participants of the researcher for assistance (legal or other) should be handled on a case-by-case basis. őe researcher must note to the participant that the researcher‘s role is as researcher only and that a request for assistance would require that the anonymity of any information related to the request be lost as it would require disclosure to a third party who could provide the assistance. if, following this disclosure, the participant wants assistance, the researcher should take steps to ensure that the participant clearly understands the exact nature of the assistance sought. őe researcher must discuss with the participant precisely what information would need to be disclosed (including the name and location of the person, relevant facts, diagnosis) and to whom (for example, lawyer, guardian, mdac staő). őe researcher should then ask for speciűc permission to disclose that information to the people or agency identiűed. before any disclosure of the information is made, the researcher must contact the responsible mdac staő member to discuss the situation. human rights and guardianship in hungary93nnex dist of interviewsdateintervieweemarch 23, 2007psychiatristmarch 23, 2007person under guardianshipmarch 23, 2007person under guardianshipmarch 23, 2007person under guardianshipmarch 22, 2007person under guardianshipmarch 22, 2007person under guardianshipmarch 22, 2007psychiatristfebruary 20, 2007case guardianfebruary 5, 2007case guardianoctober 11, 2006guardianship officeroctober 11, 2006guardianship officeroctober 4, 2006guardianseptember 27, 2006guardianseptember 26, 2006guardianship officerseptember 26, 2006guardianship officerseptember 22, 2006guardianship officerseptember 22, 2006guardianseptember 21, 2006guardianseptember 21, 2006guardianseptember 12, 2006guardianship officerseptember 12, 2006case guardianmental disability advocacy center94september 8, 2006judgeseptember 2, 2006guardianship officeraugust 22, 2006case guardianaugust 19, 2006case guardianjuly 25, 2006guardianship officerjuly 21, 2006guardianjuly 21, 2006guardianship officerjuly 7, 2006guardianship officerjuly 7, 2006guardianship officerjune 29, 2006guardianjune 22, 2006judgejune 22, 2006guardianship officerjune 12, 2006case guardianjune 8, 2006guardianship officerjune 8, 2006guardianship officerjune 8, 2006guardianapril 11, 2006judgeapril 11, 2006judgemarch 30, 2006judgemarch 13, 2006case guardianmarch 13, 2006guardianship officermarch 13, 2006guardianmarch 6, 2006 guardianship officermarch 6, 2006 guardianship officermarch 29, 2006judgehuman rights and guardianship in hungary95nnextionboxresearcher’syearavailable:yesrelationshipyesplenarymental disability advocacy center966.plenaryguardianship__________,partialguardianship____________,noguardian________.changeofguardian__________________.7yes8.yesavailable:__________9.yesyesavailableyesavailable11yesyesargumentsyesyeshuman rights and guardianship in hungary9713yesavailable:____.yesavailable:yesyesyesyesyesyesyesmental disability advocacy center9817yesavailable:yeswasyesyesyeswasyesavailableyesyesaffectsperson’syeshuman rights and guardianship in hungary991other,applicant‘s20.available:financialofpersonconcerned________________,protectionofothers___________,compliancewithministerialorders____22.yesyescourt’scourt‘syesyesmental disability advocacy center100tionboxatordata gathering sheet for individual court observations researcher’stotalyeartypeyesyesyesyesyesyesyesyesmember’,human rights and guardianship in hungary101yes6.plenaryguardianship____________,partialguardianship__________.changeofguardianship____________.ifchange,explain78.yesyes9.yesyesyesyesyesargumentsyesyesmental disability advocacy center11yesyesyesyesyesyesyeswasyesyeshuman rights and guardianship in hungary15wasyeswasyeswascourt’syesyeswasyesyesyeswasyesyesaffectsperson’syesmental disability advocacy center17other,applicant‘sin1accordingininstitution____________,financialmanagement________________protectionofpersonconcerned________20.yesyescourt’scourt‘syesyeshuman rights and guardianship in hungary22.yesyeswasyestionboxatordata gathering sheet for individual case file (guardianship authority) reviewsresearcher’syesi-11yesperson‘smental disability advocacy center5wasyesyesyesyesyes6.yesother,‘other’undergoneyeshuman rights and guardianship in hungary8.yeswasyes9.guardian‘syeswasyesyes11yesmental disability advocacy centerdata gathering sheet for statistical informationgeneral disability statistics for country (by region if possible):332please identify (list) what statistical information regarding guardianships/mental disability is available and explain the manner in which it is kept.general country (regional) statistics1.number of persons under guardianship in the country (by region if possible): male________ female _______ total _______. 2.average age of people under guardianship in the country (by region if possible):male ________ female ________3.number of persons under guardianship in the country who are in: partial guardianship______ plenary guardianship_______ total _______.4.current living arrangement (total number of cases) of people under guardianship in the country (by region if possible):social care homes __________psychiatric institutions __________other institutions ___________living alone ____________living with family ___________living with friends ___________living with relative (family) guardian ___________homeless ___________other __________5.total number of people under guardianship of relative (family) guardian:_____________total number of people under guardianship of professional (public) guardian: _____________.total number of those people who reside in community: __________ total number who reside in an institution: ____________.total number of people under guardianship of directors (or staő) of institution: __________.6.number of guardians responsible for:1 person: __________2-5 people: __________6-10 people: __________10-30 people: __________over 30 people: __________average number of people under guardianship for whom each professional guardian is responsible: ___________. human rights and guardianship in hungary7.number of applications űled for new guardianships:2005 (give number of months included): partial ______ plenary _______2004: partial ________ plenary _________1999: partial ________ plenary _________1994: partial ________ plenary _________in those countries where directors of institutions are routinely appointed guardian of their residents we should try to gather statistical/budgetary information regarding the űnancing of institutions so that we can show whether/where there is űnancial con ict of interest etc.are guardians paid for their services? does this apply to all guardians? how much are they paid (on average)? who pays them?8.are there any ‘ocial‘ statistics on how many guardianship cases are initiated each year? if so, are they broken down into any smaller categories such as by full or partial guardianship? or by region, gender, diagnosis, age?9.number of guardianships terminated for reasons other than death of the person under guardianship: 2005 (include number of months) plenary (male) ___________ plenary (female) _______ partial (male) _______ partial (female) ______ total ________.2004 plenary (male) ___________ plenary (female) __________ partial (male) __________ partial (female) _________ total __________.gap research statistics: refer to all cases examined as part of stage two research10.number of cases examined total ___________ number of men ________ number of women __________. 11.average age of persons whose case was examined:male ________ female ________12.number of cases examined where person was under: partial guardianship________ plenary guardianship_________ mental disability advocacy center11013.current living arrangement (total number of cases examined) of people under guardianship:social care homes __________psychiatric institutions __________other institutions ___________living alone ____________living with family ___________living with friends ___________living with relative (family) guardian ___________homeless ___________other __________14.total number of cases examined where person was under guardianship of relative (family) guardian: ___________total number of cases examined where person was under guardianship of professional (public) guardian: ________.total number of those cases examined where person resides in community: __________ total number of those cases examined where person resides in an institution: ____________.total number of cases examined where person was under guardianship of directors (or staő) of institution: __________.human rights and guardianship in hungary111question and answer sheet for interviews with professional participants in the guardianship processes many of the questions suggested for the quasi-formal interview process are open-ended questions meaning that they are designed to elicit a narrative response. listen and record the answers carefully (using a data recorder if possible) and ask for examples and elaboration of opinions when possible. interviews with professionals:date, time and location of interview: _________________________________identiűcation code for interviewee (pursuant to your own conűdential system which protects identity of research participants): _______________________________ role of interviewee in guardianship processes (ie: ‘judge,‘ ‘prosecutor,‘ ‘professional guardian‘): ___________________________________________________.number of years person has been involved in guardianship cases: ______________interviewee‘s estimate of how many guardianship cases he/she has been involved in: _______training/educational background of the interviewee: interviews with person concerned:date, time and location of interview: _________________________________identiűcation code for interviewee (pursuant to your own conűdential system which protects identity of research participants): _______________________________ interviewee‘s experience with the guardianship processes (ie: ‘is under guardianship‘ ‘was once under guardianship‘ ‘was the subject of a guardianship application‘): ___________________________________________________.interviewee lives in: institution ______________, community _______________, other _______________ (specify). number of years person has been under guardianship: ______________________mental health history, diagnosis, background of the interviewee: corres-ponding indicatorsuggested questions for interviews with participants in the guardianship proceedingsindicator 1interviewee: professionalswhat is your opinion of the existing guardianship system in your country? is the system utilized to the appropriate degree? ie: used only when needed.are procedures for determining capacity fair to the person involved? (explain) person concernedwhat is your opinion of the existing guardianship system in your country? is the system utilized to the appropriate degree? ie: used only when needed.are procedures for determining capacity fair to the person involved? (explain) mental disability advocacy centerindicator 2interviewee: professionalswhat is the purpose/importance of capacity evaluations in the guardianship process? are capacity exams always ordered in capacity determinations? (why or why not) under what circumstances (if any) should a person be detained in an institution in order to have a capacity exam completed? person concernedwas a capacity examination ordered in your case? (why or why not)were you asked whether you wanted to participate in being examined? indicator 3interviewee: professionalsis the presence of the person concerned important and/or necessary at each and every hearing or court date? (why or why not)person concerneddid you know that there was going to be a hearing to decide whether you had capacity and needed a guardian? if yes, how did you űnd out? did you know that you have the right to be present at every court date that concerns you? did you want to be present at court? (why or why not)did someone tell you should come to court or that you should not come to court? if yes, who told you and what did they say? indicator s4 & 5interviewee: professionalsis it important/necessary for the person involved in guardianship proceedings to be represented by a lawyer? (why or why not)in your experience, how often does the person involved have a lawyer to represent them during the proceedings? is there/should there be a system to provide free lawyers to people facing guardianship proceedings?is it common for the person concerned to present ‘a case‘ on their own behalf?what kind of evidence is most likely to be presented by the person concerned (or their representative)? (ie alternative capacity exam, witnesses such as friends/family etc.) indicator s4 & 5person concerneddid you know you had the right to have a lawyer to represent you? did you have a lawyer to represent you during your case? (why or why not)if not, did you have anyone (such as a ‘case guardian‘) represent your interest during the proceedings? would you have liked to have a lawyer to represent you? if someone did represent you during the proceedings, did that person meet with you before court?did your representative present any witnesses, documents, reports or other information to the court on your behalf? were you satisűed with the help/representation that you had during your hearing? (why or why not)did anyone ask you want result you wanted in the case? (ie whether you object to incapacitation or guardian)human rights and guardianship in hungaryindicator 6interviewee: professionalsare you aware of any case where the person concerned űled an appeal of the court‘s capacity űnding? if yes: how many appeals have there been, or how often are they űled?does the person usually űle the appeal for themselves or do they usually have a lawyer to űle the appeal? why do you think that more appeals are not űled? person concerneddid you know that you had the right to appeal in your case? if yes, how did you know about this right? did you receive notice of the court‘s decision in your case? if yes, how and when did you receive the notice?did you űle an appeal in your case? (why or why not)if a guardian was appointed for you, did you agree with the choice of the guardian? indicator 7interviewee: professionalswhat do you believe is the most important evidence to determine capacity? (in other words, what does the judge most rely on to make the decision?)other than the ‘capacity evaluation‘ is there any other information that would be helpful for a judge in making a capacity determination? if yes, what kind of information? have you received, or do others in your position receive, special training on the use and meaning of mental health information/diagnoses etc? person concernedindicator 8interviewee: professionalshow is the connection between a person‘s diagnosis and whether they have capacity determined? (ie: does the court require that any social service report be submitted to provide illustrations of how the person‘s ability is impaired due to their mental condition?) do you feel that most lawyers and judges have adequate information/training to as-certain how a diagnosis relates to a person‘s capacity to take care of their own aőairs? person concernedindicator 9interviewee: professionalswhat is the most common reason, in your opinion, for applicants to űle requests for guardianship? (ie űnancial reasons, protection of person or others etc.)what do you think is the most important result of the appointment of a guardian? person concernedwhy do you think that an application was űled to appoint a guardian for you? (explain)mental disability advocacy centerindicator 10interviewee: professionals(for judges) how do you decide whether a person should be incapacitated? (explain)(for others) how should judges decide whether a person should be incapacitated? (what should they consider when making the decision?) do you believe that judges usually receive adequate information to make the best decision? who beneűts the most from incapacitating a person and placing them under guardianship? how often are cases dismissed without a űnding of incapacitation? what is usually is the reason that cases are dismissed?what risks are involved in not incapacitating a person with mental health problems? when making the decision, do judges consider what the person involved will lose in terms of their individual rights once incapacitated? person concernedin your case, was there information that you thought the judge should know before making a decision?if yes, give examples:why did the judge not have that information (the information described above)? indicator 11interviewee: professionalswhat qualities do you think make a person a good (appropriate) guardian? (explain)if more than one person wants to be the guardian of a person, what should the decision be based upon? should the person involved have the right to choose who will be their guardian? (explain why or why not) person concernedhave you ever been asked who you would want to be your guardian if a guardian is going to be appointed?if yes, was the person you wanted made your guardian? (why or why not)what qualities do you think make for a good guardian? indicator 12interviewee: professionalswhat constitutes a con ict of interest that would or should prevent a person from acting as a guardian? (give examples)person concernedhuman rights and guardianship in hungaryindicator 13interviewee: professionals(for guardians) have you ever (or would you ever) consent to an individual exercising civil or political rights that can only be exercised with guardian‘s consent?if yes, please explain:if not, why not? person concernedhave you ever wanted to or tried to exercise rights which you were prevented from exercising because you are under guardianship? if so, what did you want/try to do? who prevented you from doing so? indicator 14interviewee: professionals(for guardians) have you ever (or would you ever) consent to an individual exercising social or economic rights that can only be exercised with guardian‘s consent?if yes, please explain:if not, why not? person concernedhave you ever wanted to or tried to exercise rights which you were prevented from exercising because you are under guardianship? if so, what did you want/try to do? who prevented you from doing so? indicator 15interviewee: professionalsare there any decisions that a person under guardianship should be allowed to make for themselves?if so, what decisions? if not, why not? person concernedwhat areas of your life would you most like to be in charge of for yourself? are there decisions that you think you should be allowed to make for yourself rather than having your guardian make those decisions? if so, what are they? have you ever disagreed with a decision that your guardian has made for or about you? mental disability advocacy centerindicator 16interviewee: professionalsdo you think that the person under guardianship should be consulted about some decisions before the guardian makes a decision? if so, what kinds of decisions should the person under guardianship be consulted about? what weight should the person under guardianship‘s opinion be given? if the person under guardianship should not be consulted, why not? (for guardians) do you consult the person under guardianship when you are making a decision (a major decision) about their life? why or why not? person concerneddoes your guardian ever ask you what you think/want? if so, what kinds of things has your guardian asked you about? do you feel that your guardian listens to your wishes/opinions? (explain)indicator 17interviewee: professionalsperson concernedare you aware of any way in which you can challenge a decision that your guardian has made on your behalf about your life? if yes, what can you do? indicator 18interviewee: professionalsdo you accept that a guardian is responsible for providing all the basic necessities of the person under guardianship?what happens to a guardian who fails to provide for a person under guardianship? how does that guardian get discovered? person concernedwhat is your understanding of what your guardian‘s job is? who is responsible for making sure that you have enough food and clothing, for example? what happens if you don‘t have what you need? indicator 19interviewee: professionalsis there a mechanism for complaints about a guardian? if so, how are complaints investigated? (ie who is responsible for investigating and how is investigation done?) person concernedhuman rights and guardianship in hungaryindicator 20interviewee: professionalsdescribe the extent of a guardians‘ authority: are there any decisions that a guardian is not allowed to make for the person under guardianship? if so, what are they? in reality, how often are the decisions of a guardian reviewed by someone else (such as the guardianship authority)?person concernedhas anyone ever asked you if you think your guardian is doing a good job for you? if yes, who asked you? indicator 21interviewee: professionalsdo you think it is important for a guardian to visit the person under guardianship periodically? why or why not? how often do most guardians visit and talk to the person under guardianship? person concerneddo you see your guardian regularly? how often do you see your guardian? if so, does your guardian ask you about what you want or need? do you feel that your guardian listens to what you say (want or need)? indicator 22interviewee: professionalswho decides where the person under guardianship should live? (ie, guardian, family, psychiatrist etc.)have you known a guardian who has moved the person from an institution into the community? person concerned(for those living in institutions) since you‘ve had a guardian, have you ever lived outside of the institution? (explain)indicator 23interviewee: professionalshow is the property (űnancial assets) of the person under guardianship used? does the guardian have to report to anyone about how the assets are used/spent? if so, how often does this reporting happen? person concerneddo you have any money or property that belongs to you? if so, who takes care of it? (who manages it)do you know how your money is spent? does anyone ever show you any accounts or reports on how your assets (property) are being used? mental disability advocacy centerindicator 24(for countries which utilize partial guardianships)interviewee: professionalsare all guardians given the same authority and decision-making power over the people under guardianship? if not, how is the extent of a guardian‘s authority determined? how are partial guardianships diőerent from plenary guardianships? what are the practical diőerences between partial and plenary guardianships?person concerned(persons under partial guardianship) what kinds of things/decisions are you able to do on your own without the consent of your guardian? indicator 25interviewee: professionalswhat (if any) alternatives to guardianship exist in your region? how often are alternatives used? person concerneddo you think that there is some help that you need/want that would allow you to live without having a guardian? if so, what would that be? (ie what kind of help do you think you need?)indicator 26interviewee: professionalsshould guardianship be a űrst response or a last resort for people with mental disabilities? (explain)person concernedindicator 27interviewee: professionalshow often are (should) guardianship cases be reviewed by the guardianship authority? what is the purpose of guardianship reviews? person concernedto your knowledge, are the decisions that your guardian makes for you ever reviewed by anyone else to determine if they are good decisions or not? to your knowledge, has your case ever been reviewed to determine whether you still need a guardian? if so, how often? indicator 28interviewee: professionalshow often are guardianships terminated and the person under guardianship restored to their full capacity? who usually initiates applications for termination of guardianship? how often are guardianships changed from partial to plenary or plenary to partial guardianships? person concernedhave you ever wanted to have your guardianship changed somehow or ended all together? if so, what did you want changed? how would you go about getting it changed? mental disability advocacy center2007mental disability advocacy center2copyright © mental disability advocacy center, 2007minden jog fentartva.isbn: 978-963-87607-1-5ez a kiadvány magyar és angol nyelven jelent meg, és az mdac weboldaláról tölthető le: www.mdac.info.a tanulmánnyal kapcsolatos kutatást és publikációk megjelenéséta következő szervezetek nagylelkű felajánlásai tették lehetővé:the sigrid rausing trusteurópai bizottság: directorate-general justice, freedom and security„actions in support of civil society in the member states which acceded to the european union on 1st may 2004”the open society institute (budapest)európa tanács (természetbeni felajánlásokkal)a dokumentumban közölt vélemények a szerzők álláspontjai, és nem feltétlenül tükrözik az europai bizottság véleményét; az abban közölt infomációkért csakis a szerzők a felelősek. a bizottság nem vállal felelősséget a kiadvány tartalmáért és az abban közölt információk felhasználásáért.gondnokság és emberi jogok magyarországonellentétben állnak a felnőtt személy vágyaival és/vagy érdekeivel. következésképpen a hatékony gondnoki rendszereknek felügyelni kell a gondnok tevékenységét, és megfelelő elszámoltatási rendszerrel kell rendelkezniük.miközben a fogyatékosok globális emberi jogi mozgalma megerősödik, a gondnokság modelljét, mint olyan eszközt, amelynek védelmet és segítséget kellene nyújtania a mentális sérültséggel élők számára, egyre több kritika éri. a legfőbb kritikai észrevétel az, hogy nem képes megfelelő eljárási védelmet biztosítani a gondnokság létrehozása és működtetése során, valamint nem tudja biztosítani az önrendelkezés jogát.5 néhány törvénykezési rendszerben – ilyen kanada és az egyesült királyság jogrendszere – megreformálták a gondnoki jogszabályokat, és a védelem, illetve segítségnyújtás alternatív eszközei kerültek előtérbe. talán a leginkább őgyelemre méltó ezek közül a támogatott vagy segített döntéshozatal.6 ennek eredményeképpen ezekben a jogrendszerekben a törvényhozók és bíróságok legvégső megoldásként tekintenek a gondnokságra, melyet csak minden más, kevésbé korlátozó jellegű védelmi eszköz kimerítése után alkalmaznak.a gondnokságot – meglehetősen későn ugyan – formálisan is elismerte a nemzetközi emberi jogok rendszere, és világszerte sürgető témaként tekintenek rá. a fogyatékos személyek jogairól szóló ensz egyezmény (fogyatékosügyi egyezmény), amelyet magyarország 2007. március 30-án írt alá, 12. cikke speciőkusan foglalkozik a jogképesség/cselekvőképesség kérdésével (amely koncepció a gondnokság része) amikor kimondja:a törvény előtti egyenlőség a részes államok újólag megerősítik, hogy a törvény előtti egyenlőség joga a fogya-tékossággal élő személyeket mindenhol megilleti; a részes államok elismerik, hogy a fogyatékossággal élő személyek az élet minden területén másokkal egyenlő jog- és cselekvőképességet élveznek. a részes államok meghozzák a szükséges intézkedéseket, hogy a fogyatékossággal élő személyek jog- és cselekvőképességének gyakorlásához esetlegesen szükséges segítség hozzáférhetővé váljon. a részes államok biztosítják, hogy a nemzetközi emberi joggal összhangban a jog- és cselekvőképesség gyakorlásával kapcsolatos valamennyi intézkedés a visszaélések megelőzésére irányuló, megfelelő és hatékony biztosítékokat ír elő. a biztosítékok biztosítják, hogy a jog- és cselekvőképesség gyakorlására vonatkozó intézkedések tiszteletben tartják a személy jogait, akaratát és választását, összeférhetetlenségtől és jogosulatlan befolyástól mentesek, arányosak és a személy körülményeire 5.dqdgdl6]|yhwvpj.|]|vvpjleohwpuw &dqdgldq$vvrfldwlrqiru&rppxqlw/lylqj &$&/mhohqwpvh.|whopnjrqgqrnvijdowhuqdwtyilpuw dxjxv]wxvhopukhwę kwws zzzzruoghqdeohqhwuljkwvdgkrfphhwbjxdugldqvklskwm$äwiprjdwrwwg|qwpvkr]dwdo´phjkdwiur]iviwoivgd]ä$´)jjhopnehqmental disability advocacy centerszabottak, a lehető legrövidebb időre vonatkoznak, továbbá hogy a hatáskörrel rendelkező, független és pártatlan hatóság vagy igazságügyi szerv rendszeresen felülvizsgálja azokat. a biztosítékok azzal arányosak, amilyen mértékben az adott intézkedések érintik a személy jogait és érdekeit. e cikk rendelkezéseire is őgyelemmel a részes államok minden megfelelő és ha-tékony intézkedést megtesznek a fogyatékossággal élő személyek egyenlő jogának biztosítására a tulajdonhoz való jog és az örökléshez való jog, a saját pénzügyeik irányításához való jog, a bankkölcsönhöz, zálogjoghoz és más pénzügyi hitel-hez való egyenlő hozzáférés vonatkozásában, valamint biztosítják, hogy a fog-yatékossággal élő személyeket önkényesen ne foszthassák meg vagyonuktól. ezen előírások közvetlenül kihatással vannak a gondnokságra. ezen felül alátá-masztják az mdac azon törekvését, amelynek célja a gondnokságra vonatkozó paradigmaváltás megvalósítása, amely szakít a gondnokság alatt állók emberi jogainak önkényes megfosztásával, és a fogyatékosügyi egyezményt, különösen annak 12. cikkét elismerő nemzeti irányvonalak és jogszabályok elfogadása felé mutat. az mdac abban bízik és arra törekszik, hogy e tanulmány a paradigma-váltás irányát és sebességét is befolyásolni fogja magyarországon.1.2 a gondnoksági kutatássok országban, ahol az mdac tevékenykedik, a gondnokság jogszabályai évtizedeken át viszonylag változatlanok maradtak. ugyanakkor mindenütt lényeges reformlépések várhatóak, ahogy az országok folytatják jogrendjük összehangolását a nemzetközi emberi jogi normákkal, ezek között az ensz fogyatékosügyi egyezménnyel is. az mdac gondnoksági projektjét azzal a céllal indította meg, hogy azonosítsa a működő jogrendek e téren felmerülő erősségeit és gyengéit, így hívja fel a őgyelmet a gondnokságra mint sürgős reformot igénylő területre. a projekt két szakaszból áll. az első az adott gondnokságra ható jogrendszer vizsgálatával foglalkozik. a második szakasz, mivel a jogalkotás és a valóság gyakran eltér, megvizsgálja egyrészt a gondnokság területén tapasztalható valóságot, a szabályozás gyakorlatba történő átültetésének vizsgálatán, és más módszereken keresztül, másrészt a gondnokság alá helyezési eljárás és a gondnokság érintett személyre gyakorolt hatásait. az mdac 2004 végén kezdte meg a gondnokság kutatás első szakaszát a gondnoksági jogszabályok szerkezeti vizsgálatával. a kutatás eredetileg négy országra összpontosított: bulgáriára, magyarországra, oroszországra és szerbiára. az mdac 2006-ban további négy országban kezdett kutatásokat. ezek: a cseh köztársaság, grúzia, horvátország, és kirgizisztán. mindegyik országról külön tanulmány készült.a kutatás első szakaszának konkrét feladata, hogy megvizsgálja, az egyes országok gondnoki jogrendszere milyen mértékben felel meg a nemzetközi emberi jogi törvényeknek, normáknak és a pozitív gyakorlatnak, ennek segítségével pedig feltárja a gondnokság és emberi jogok magyarországonváltoztatást igénylő területeket. mint sok – főleg feltérképezetlen terület első felderítését szolgáló – kutatási projekt, az így összeállított jelentések is több megválaszolandó kérdést vethetnek fel. ez jelen esetben különösen igaz, hiszen a gondoksági projekt nem statisztikai vizsgálat, hanem inkább jogi elemzés. 1.3 köszönetnyilvánítása kutatást a célországokban élő jogászok végezték. k végezték el az adott országon belüli teljes kutatást, írták meg az országjelentések első vázlatait, és részt vettek a szerkesztési folyamatban is. a kutatók: slavka kukova (bulgária), petar sardeli (horvátország), zuzana benešová (cseh köztársaság), nina dadalauri (grúzia), kaderják dániel (magyarország, joghallgató és projektasszisztens), meder dastanbekov (kirgízisztán), anna smorgunova (oroszország), vidan hadi-vidanovi (szerbia).hosszú idővel a gondnokság projekt helyszíni kutatómunkáinak kezdete előtt, 2003 februárjában az mdac maga köré gyűjtött egy csapatot, és létrehozta a gondnoksági tanácsadó kuratóriumot. ez a csoport aktív résztvevő volt a projekt mindkét lépcsőjének elméleti kialakításában, megtervezésében és végrehajtásában, tagjai nagylelkűen hozzájárultak a munkához idejükkel és szakértelmükkel. a gondnoksági tanácsadó kuratórium öt nemzetközileg elismert szaktekintélyből áll, a mentális egészség, a gondnokság és az emberi jogi törvények területéről:dr. robert m. gordon, a simon fraser egyetem kriminológia tanszékének vezetője és professzora, kanada, vancouver;dr. georg høyer, a közösségi orvostudomány professzora, tromsøi egyetem, norvégia;dr. krassimir kanev, a bulgáriai helsinki bizottság elnöke, bulgária, szóőa;mark kelly, az irish council for civil iberties (ír tanács a szabadságjogokért) igazgatója, dublin, írország; dr. jill peay, a jogtudományok professzora, ondon school of economics, ondon, egyesült királyság.az mdac szeretné kifejezni háláját a gondnoksági tanácsadó kuratórium tagjainak a projekt érdekében tett egyéni és kollektív hozzájárulásukért. bármely fellelhető hibáért az mdac kizárólagos felelősséget vállal. az mdac korábbi kutatási és fejlesztési igazgatója, marit rasmussen alakította ki és vezette projektet két éven keresztül. priscilla adams, jill diamond, jill roche és nicholas tsang gyakornokok segítették a háttérkutatást, fenyvesi istván tervezte és tördelte a tanulmányokat.a magyarországi kutatást kaderják dániel végezte, aki az első szövegváltozatot készítette. gombos gábor, fiala jános, budai csilla és benkó boglárka a későbbi szakaszokhoz nyújtottak értékes megjegyzéseket, sarah green, jill peay valamint oliver ewis készítették el a tanulmány végső változatát.mental disability advocacy center1.4 módszertan1.4.1első szakasz: a jogi szabályozás vizsgálataa projekt első szakasza sokkal inkább egy jogi elemzés a jogszabályszövegek tartalmáról, mintsem azok alkalmazásának vizsgálata. ennek magyarországi eredményeit a tanulmány 2. fejezete foglalja össze. a tanulmány az alábbi módszerek segítségével vizsgálja a nemzetek jogrendjében található gondnoksági rendszereket és a vonatkozó jogszabályokat:tanulmányozza a gondnokság elrendelésének, módosításának és megszüntetésének jogi eljárásait és az ilyen eljárásokban résztvevő felek jogait;rögzíti a vélhetően cselekvőképtelen személy jogait a gondnoksági folyamat teljes egészében;rtékeli, hogy a cselekvőképesség korlátozása illetve a cselekvőképesség kizárása során az érintett személy mely jogait vonják el;elemzi a gondnokok jogkörét és hatalmát, elszámoltathatóságukat és ellenőrzésük módját, valamint a gondnokok elleni eljárásokat.1.4.2második szakasz: helyszíni adatgyűjtésa második szakasz középpontjában az egyes célországok gondnoki gyakorlatának de facto7 vizsgálata áll. a megőgyelések bírósági meghallgatásokon, bírósági iratok megfelelő és lehetséges mértékű felülvizsgálatán, gyámhivatalok eljárásainak megőgyelésén és azok aktáinak felülvizsgálatán alapulnak. a vizsgálat magyarországra vonatkozó megállapításai e tanulmány 3. fejezetében találhatók.mivel bizonyos információk csak a gondnoki eljárásokban résztvevőktől szerezhetők be, az mdac megkísérelt végigkövetni eseteket, megőgyelni bírósági és gyámhatósági meghallgatásokat, áttekinteni egyes esetek iratait és interjúkat készíteni. ez az adatgyűjtési mód lehetőséget biztosít arra, hogy „pillanatfelvételt” készítsünk a gondnoksági gyakorlatról. az olyan résztvevőkkel készített interjúkat is tartalmazó kutatás vezetése, ahol a résztvevők közül néhányan mentális egészségügyi problémákkal, vagy értelmi fogyatékossággal élnek, etikai kérdéseket vet fel. ezek az interjúalanyok magánéletével és cselekvőképességével kapcsolatosak: megértették-e a kutatás célját, és tájékozott hozzájárulásukat adják-e a részvételükhöz. az mdac gondosan őgyelembe vette az ezzel kapcsolatban felmerült etikai kérdéseket, és olyan útmutatás szerint ä9doyvopwh]ękdwivwjdnruoydqqdnhoohqpuhkrjklydwdorvdqydjmrjlodjqhpholvphuw´black‘s law dictionaryblack-féle jogi szótár :hvwnldgivgondnokság és emberi jogok magyarországonvégezte tevékenységét, mely a résztvevők és az általuk szolgáltatott adatok védelmét megfelelően biztosítja (d. az etikai útmutatót a c függelékben). az információkat minden kutató egy számrendszerben kódolva tárolta, és a kódkulcsot, illetve a nyers adatokat egymástól elkülönítve tárolta. az útmutató meghatározza a „résztvevőknek” adandó információkra vonatkozó szabályokat: a kutatásban való önkéntes részvételt, a részvétel bármikor történő megtagadásának jogát, és a „résztvevők” által nyújtott információk bizalmas kezelését.1.5 indikátorok a gondnokság emberi jogi szempontú értékelésére a projekt során az mdac huszonkilenc indikátort alkalmazott a vizsgált jogrendszer értékelésére.8 ezen indikátorokat az mdac a gondnoksággal és a támogatott döntéshozatallal foglalkozó legfontosabb dokumentumból, azaz az európa tanács miniszteri bizottságának r(99)4. sz. „a cselekvőképtelen felnőttek jogi védelmének alapelveiről” szóló ajánlásából,9 valamint egy, az európában, az egyesült államokban és kanadában működő gondnoksági jogrendszer mintáiról készült áttekintésből vette. az indikátorok megfogalmazásakor az mdac őgyelembe vette, hogy minden vizsgált ország – kirgizisztán kivételével – ratiőkálta az emberi jogok európai egyezményét, és az európa tanács tagállamaiként elvárható, hogy jogrendszerüket összehangolják az olyan „puha jogszabályokkal”,10 mint az r(99)4. sz. ajánlás.az mdac indikátorai az emberi jogokat tisztelő, személyközpontú gondnoki rendszer kialakításához szükséges biztosítékokat ragadják meg. a szándék az volt, hogy az indikátorok viszonylag egyszerűek és tömörek legyenek, még akkor is, ha az általuk lefedett területek rendkívül összetettek.az indikátorok nem kimerítő érvényűek, de rávilágítanak a gondnoki rendszerekben élő felnőtt személyek kritikus problémáira. egy pont vagy kérdéskör kihagyása egy in-dikátorból nem jelenti azt, hogy az adott probléma nem fontos, vagy ne jelentene prob-lémát a kérdéses ország jogrendi kereteiben. az mdac célja a vizsgálat egységesítésével és a gondnoki rendszerek elemzésével olyan eszköz létrehozása az emberek számára, melynek segítségével összevethető a különböző országok rendszereit. reméljük, hogy az indikátorrendszer más országokban is hasonló kutatást fog eredményezni.$kxv]rqnlohqflqglniwru|vv]hirjodoymiwoivgä%´)jjhopnehq$phprudqgxpwhomhvv]|yhjpwoivg kwwsv zfgfrhlqw9lhz’rfmvs”lg 3soft law%odfn¶vsrolwlndl7dqifvmental disability advocacy centergondnokgi jogsabályok éstatgiákagrorzá.1bevezetésmagyarország mintegy tízmilliós lakosságú ország közép-európában.11 xx. századi tör-ténelme meglehetősen eseménydús: az osztrák-magyar monarchia összeomlása az első világháború végén, második világháború, kommunista uralom, majd a szovjet hadsereg által levert 1956-os forradalom. magyarországon a rendszerváltás utáni első demokratikus választásokat 1990-ben tartották, és az ország gyorsan áttért a szabad piacgazdaságra. az ország 1999-ben csatlakozott a nato-hoz, majd 2004-ben az európai unióhoz.2 a fogyatékossággal élű személyek demográfiai és társadalmi képe magyarországona fogyatékossággal élő személyek számát az 1990-es és a 2001-es népszámláláskor is felmérték. a 2001-es cenzus adatai szerint 577.000 fogyatékkal élő ember volt az országban, ez a népesség 5,7%-nak felel meg. ez az adat ugyanakkor a központi statisztikai hivatal szerint valószínűleg alábecsüli a fogyatékossággal élő személyek valós számát.12a fogyatékossággal élő személyek között a őzikai fogyatékosok szerepeltek a legnagyobb arányban (43,6%), míg az értelmi sérültek aránya körülbelül 10%.13 ezen felmérés szerint a fogyatékos személyek 22%-a egyedül élt, 57%-uk fogyatékosság nélküli személlyel, és csak kevesebb, mint 11%-uk harmad-, vagy többedmagával. az összes fogyatékkal élő közel 8%-a él hosszú távon intézményben.14a 2001-es népszámlálás szerint 62.256 felnőtt személy élt szociális gondozó intéz-ményekben.15 közülük 37.472 fő idősek szociális otthonában élt, 14.483 felnőtt személyt tekintettek értelmi sérültnek és helyeztek el e célra létesített otthonok valamelyikében, további 7.540 fő pedig pszicho-szociális (mentális) fogyatékossággal 11$.|]srqwl6wdwlv]wlndl+lydwdoiowdouhqghonh]pvuherfviwrwwdxjxv]wxvlsrqwrvdgdwięyrow v]hppohvnrppxqlnifly$]òmruv]ijrvirjdwpnrvjlsurjudpuyov]yoyruv]ijjħopvlkdwiur]dw,,ihmh]hwh $)rjdwpnndopoęnv]rfliolvkho]hwpqhnehpxwdwivd ,,$] pyl;;9,w|uypqirjdwpnndopoęnmrjdluyopvhjhqoęohkhwęvpjhluęosdudjudixvddodsmiq13 ,elg14 ,elg151psv]ipoioiv.|]srqwl6wdwlv]wlndl+lydwdooivg kwws zzzqhsv]dpododvkxlgondnokság és emberi jogok magyarországonélő személyek számára létesült otthonokban élt. 1399 személy élt szenvedélybetegek számára létesített intézetekben, 1422 fő hajléktalanszállásokon.16a magyar igazságügyi minisztérium a gondnokság alatt álló személyek számát 2001-ben 35.000 főre becsülte.17 ez a szám 2006-ra közel a duplájára, 66.203 főre emelkedett.18 egy 2001-ben elvégzett kutatás feltárta, hogy az akkor működő 52 pszichiátriai gondozó otthonból19 huszonkettőben minden lakó gondnokság alatt állt, míg a gondnokság alá helyezettek, és a bentlakók aránya mindössze 4 otthonban volt 80% alatt.20rdemes megjegyezni, hogy a központi statisztikai hivatal nem tudott felvilágosítást adni az mdac-nek a gondnokság alá helyezettek számáról, sem életkörülményeikről, vagy nembeli megoszlásukról.3 magyarország jogrendszerea vasfüggöny 1989-es lebontása óta magyarország független parlamentáris köztár-saság, melynek átdolgozott alkotmánya 1989. október 23-án lépett hatályba. magyarország kontinentális jogrendszerrel rendelkezik. a bíróságok a kormánytól függetlenek és közvetlenül alkalmazzák a törvényeket. általánosságban az első fokú bírósági határozatok nem kötelező érvényűek más bíróságokra nézve, a egfelsőbb bíróság bizonyos döntései viszont kötik az alsóbb fokú bíróságokat is.a magyar jogrend legfontosabb forrásai – a törvényeken kívül – az országgyűlési határozatok, a kormány- és miniszteri rendeletek és a helyi önkormányzatok rendeletei. magyarország számos nemzetközi emberi jogi szerződést és egyezményt ratiőkált, ilyen az emberi jogok európai egyezménye,21 a gyermekek jogainak egyezménye,22 a polgári és politikai jogok nemzetközi egyezségokmánya,23 a gazdasági, szociális és kulturális jogok nemzetközi alapokmánya,24 az egyezmény a nők elleni diszkrimináció ,elg170dndl.dwdolq,jd]vijjl0lqlv]wpulxplgp]hwd ä.ldnrpshwhqv”´-hohqwpvhjnhuhndv]wdoehv]pojhwpvuęo 7iuvdvij6]dedgvijmrjrnpuwpimxv r$]lqirupiflywd]2uv]ijrv,jd]vijv]rojiowdwivl7dqifvv]rojiowdwwdd]0’$&qhnmdqxiuiqnhowohyhopehq(]ohypomhoh]whwryieeikrjięponl]iuyjrqgqrnvijdodww ięponruoiwr]yjrqgqrnvijdodwwpv ięjrqgqrnvijiqdnwtsxvdlvphuhwohqohypophjwdoiokdwyd]0’$&qpo $.|]srqwl6wdwlv]wlndl+lydwdoqiov]ipedyhwwv]rfliolvjrqgr]yrwwkrqrnv]ipd|vv]hvhq$]howpupvydoyv]tqħohjno|qiooylqwp]ppqirjdopiqdnhowpuędgplqlv]wudwtygh¿qtflylqdnn|yhwnh]ppqh3v]lfkliwuldleughnypghopl)yuxp¶7kh+xpdq5ljkwvri3dwlhqwvlq6rfldo&duh+rphvfor mentally ill‘$qjroirugtwiv%xgdshvw5dwl¿nioyd qryhpehupq5dwl¿nioyd rnwyehupq5dwl¿nioyd v]hswhpehupq5dwl¿nioyd mdqxiupqmental disability advocacy centerminden formájának megszüntetéséről,25 az európai szociális charta (átdolgozott),26 és az egyezmény a diszkriminációról (foglalkoztatás, munka) – io 111.27 az országgyűlés 2006-ban egyhangúlag elfogadta az új országos fogyatékosügyi programot a 2007-2013-as időszakra.28 ez kormányzati célkitűzésként fogalmazza meg törvények alkotását és programok kidolgozását, ideértve egy akcióterv elfogadását is, amely meghatározza a feladatokat, a funkciókat, felelős testületeket és a források kiutalását. a kormány köteles kétévente jelentést készíteni az országgyűlésnek a program céljainak teljesítése felé tett előrelépésekről. a fogyatékossággal élő személyek szervezeteinek törvényben biztosított joga van részt venni a cselekvési terv kidolgozásában. az új program egyebek közt hangsúlyt fektet az alábbi fontos alapelvre: a személyhez fűződő, illetve a fogyatékos személyeket külön megillető (speciális) jogok védelmének, valamint a támogatott döntéshozatal elvének valamennyi általános szabályban (pl. gyámság, gondnokság) érvényesülnie kell. a támogatott döntéshozatal elve a helyettes döntéshozatallal szemben a fogyatékos személy saját döntéshozatalának, egyéni döntési képességétől függő, teljes, minden lehetőségre kiterjedő segítését jelenti. ezen alapelv megvalósításának érdekében az államnak megfelelő források biztosításával segítenie kell a fogyatékos embereket, hogy a támogatott döntéshozatalt segítő hálózat épülhessen ki. a jogok érvényesítéséhez szükséges „program-elemeken” túl gondoskodni kell a program végrehajtásának monitorozásáról, illetve a jogok megismertetéséről, a jogvédelmi technikák elterjesztéséről, a jogok védelmével foglalkozó intézmények megerősítéséről.29külön fejezetek foglalkoznak a fogyatékossággal élő személyek életminőségének javításával, hangsúlyt fektetve az intézményen kívüli élet jelentőségére és a fogyatékossággal élő személyek társadalmi életben való részvételének elősegítésére.30 a program szerint a kormánynak ki kellett volna dolgoznia egy időközi intézkedési tervet, és azt 2006. augusztus 31-ig be kellett volna nyújtania az országgyűlésnek. ez 2007. május végéig, az mdac jelentésének nyomdába kerüléséig nem történt meg.31 4 gondnoksági jogszabályok magyarországona xix. század előtt magyarország törvényei csak értelmi fogyatékos személyekre tettek utalást és csak a tulajdonjog vonatkozásában. 1872-ben szétválasztásra került a bíróság és a gyámhivatal jogköre. 1877-ben a törvény a közigazgatási hálózat hatáskörébe 5dwl¿nioyd ghfhpehupq5dwl¿nioydrnwyehupq5dwl¿nioyd m~qlxviq lp lp,ihmh]hw kwws zzzippjrykxpdlqsks”5 lp310hjnhoomhjh]qlkrjnrupiq]dwlv]lqwhqylwdirolnduuyokrjkdwiur]dwmhohqohjkdwiorvhydjvhpgondnokság és emberi jogok magyarországonutalta a gondnoksági eseteket, és csak néhány kérdést hagyott a bíróságok döntési hatáskörében. az 1877-ben hatályba lépett törvény emellett meghatározta a gondnok bizonyos kötelezettségeit. a cselekvőképesség és a gondnokság kérdésének jelentős részét32 az 1959-es polgári törvénykönyv,33 valamint az 1952-es polgári perrendtartás34 szabályozza, amelyek vonatkozó részei időről időre módosultak, legutóbb 2001-ben. a gondnokságot befolyásoló jogszabályok közé tartozik továbbá az alkotmány,35 a gyermekek védelméről és a gyámügyi igazgatásról szóló törvény,36 a kormányrendelet a gyámhatóságokról, a gyermekvédelmi és gyámügyi eljárásról,37 a házasságról, családról és gyámságról szóló törvény,38 valamint a közigazgatási hatósági eljárás és szolgáltatás általános szabályairól szóló törvény is.39 5 a magyarországi két lépcsűs gondnoksági/cselekvűképtelenséget megállapító eljárása magyar jogrend két intézményrendszer között osztja el a felnőtt személyek cselekvőképességének meghatározásával, illetve a fennálló gondnoki kapcsolat felügyeletével kapcsolatos felelősséget. a cselekvőképességről a bíróságok döntenek, a gondnokok kijelölése és a létrejött gondnoki jogviszony felügyelete pedig a gyámhatóságok felelőssége. a gyámhatóságok végrehajtó szervek a helyi és regionális önkormányzatokon belül, működésüket részben az összes fent említett törvény szabályozza.40 a gyámhatóságok hatásköre többek között kiterjed a gyermek- és családvédelmi ügyekre, valamint az értelmi fogyatékossággal élő felnőtt személyek gondnokság alá helyezési eljárásának kezdeményezésére.41 valójában bármely személy $w|uwpqhoplkiwwpuklydwivrvjrqgqrnrnv]ipiudnpv]ownps]pvldqdjrneyov]iupd]lns)ęyiurvl*ipklydwdonps]pvh%xgdshvwpimxv33 pyl,9w|uypq3rojiul7|uypqn|qyuęo $wryieeldnedq 3wn34 pyl,,,w|uypq3rojiul3huuhqgwduwivuyo wryieeldnedq 3s35 pyl;;;,w|uypq*huphnhn9pghoppuęopv*ipjl,jd]jdwivuyo37 ,;.rupiquhqghohwjipkdwyvijrnuyoydodplqwjhuphnypghoplpvjipjlhomiuivuyo dwryieeldnedq *hu pyl,9w|uypq+i]dvvijuyo&vdoiguyopv*ipvijuyo $wryieeldnedq &vmw pyl&;/w|uypq.|]ljd]jdwivl+dwyvijl(omiuivpv6]rojiowdwivèowdoiqrv6]deiodluyokholv]lqwħjipkdwyvijydqehohpuwyh%xgdshvwhqpħn|gęjipkdwyvijrwlv(phoohwwphjhlięyiurvlv]lqwħjipkdwyvijydq oivg0hoopnohwhw ,;.rupiquhqghohwkh]41$jipkdwyvijrnihodgdwdlqdnolvwimdphjwdoiokdwyd] pyl;;;,w|uypq †edq,ghwduwr]ln jhuphnypghohp so jhuphnhnhokhoh]pvhqhyhoęrwwkrqrnedq fvdoigrnmrjlkho]hwpqhnuhqgh]pvh so v]nvpjhvhwpqetuyvijlshunh]ghppqh]pvhd]dsdv]hppopqhnphjioodstwiviud |u|nehirjdgiv v]oęlmrjlhvhwhn so nrppxqlniflyirupilqdnphjkdwiur]ivdjhuphnpvv]oęn|]|ww jrqgqrnvijljhn so jipwhypnhqvpjpqhnihooyl]vjiodwd jrqgqrnvij ydjrqnh]hopv so jrqgqrnirqwrvspq]jlg|qwpvhlqhnihojhohwh etuyvijlhomiuivrnnh]ghppqh]pvh so jrqgqrnvijmental disability advocacy center22kérvényezheti a gyámhivatalnál, hogy az kezdeményezzen vizsgálatot egy személy gondnokság alá helyezésének szükségességéről. a gyámhivatal a vizsgálatokról saját hatáskörben dönthet, köteles viszont gondnoksági eljárást kezdeményezni, ha úgy látja, hogy az adott személy gondnokság alá helyezése „szükséges”.42a polgári törvénykönyv kimondja, hogy „cselekvőképes mindenki, akinek cselekvő-képességét a törvény nem korlátozza vagy nem zárja ki”.43 a törvény emellett biztosítja, hogy a jogi cselekvőképességet csak bíróság korlátozhatja, vagy zárhatja ki. ez az első lépés a gondnokság alá helyezés felé. az eljárás akkor kezdődik, amikor a törvény által felhatalmazott személy, vagy a gyámhatóság kérvényt nyújt be a bíróságnak, hogy az ítélkezzen arról, hogy az adott felnőtt személy cselekvőképességében korlátozott vagy cselekvőképtelen.44 a kérvény benyújtását követően a bíróság meghallgatást tart a bizonyítékokról, majd döntést hoz. a felnőtt személyt cselekvőképesnek tekintik a teljes bírósági eljárás során, így tehát rendelkezik minden – a magyar bíróságokon bármely peres felet megillető – eljárási joggal.45 természetesen ha a bíróság úgy találja, hogy a felnőtt személy teljes cselekvőképességgel rendelkezik, akkor az eljárást a felnőtt személy cselekvőképességének korlátozása, vagy megvonása nélkül megszüntetik. a bíróság megállapíthatja, hogy a felnőtt személy nem cselekvőképes, amennyiben úgy határoz, hogy a felnőtt saját ügyeinek viteléhez szükséges képessége tartósan és teljes mértékben hiányzik pszichés állapotának vagy szellemi fogyatkozásának eredményeként.46 ha a felnőtt személy fogyatéka „nagymértékben hiányzik” (szemben a „teljes mértékben hiányzik” megállapítással), vagy ha a fogyatékosság epizódszerű, akkor a bíróság megállapíthatja, hogy a felnőtt személy részlegesen cselekvőképes.47 a kóros függőség szintén alapot szolgáltathat a bíróságnak a részleges cselekvőképesség kimondására, de nem elegendő a személy cselekvőképességének teljes megvonására.48 a bíróság szerepe véget ér azzal, hogy meghatározza a felnőtt személy cselekvőképességének fokát.doikhoh]pv eħqjlqrpr]ivnpuypqh]pvh so kdeħqwpqwn|yhwqhnhojhuphnnhov]hpehq spq]jlmxwwdwivrnpvwiprjdwiv so wduwivgtm v]dnpuwęnxwdvtwivdpvv]dnpuwęlgtmdnphjkdwiur]ivd/ivgppj.lvshvw %xgdshvwhjlnnhuohwhjipklydwdoiqdnklydwdorvkrqodsmiw zzzklydwdonlvshvwkxjdpklyjdpklykwm3wn† ehn43 ,elg† ehn44$mrjnpshvvpjpdjduwhuplqroyjliedqd]wmhohqwlkrjv]hppomrjrnndouhqghonh]lnpvmrjln|whoh]hwwvpjhndodqdohkhw0djduruv]ijrqv]hppohnqhnmrjv]deiov]hulqwqhpfvdnmrjnpshvvpjnkdqhpfvhohnyęnpshvvpjnlvydq$]$onrwpiqdv]hulqwplqghqv]hppouhqghonh]lnmrjnpshvvpjjhofvhohnyęnpshvvpjjhod]rqedqqhpihowpwohqo oivgd]$onrwpiqflnnpwä$fvhohnyęnpshvvpjv]hppod]rqnpshvvpjhphoqhndodsmiqv]hppomrjrndwv]huh]khwpvn|whoh]hwwvpjhnhwyioodokdwvdmiwqhypehqvdmiwg|qwpvpeęoydjdndudwieyo dgh¿qtfly3rojiul7|uypqn|qy†iqdn.rpphqwiumieyov]iupd]lnä$3rojiul7|uypqn|qypdjdui]dwd´>wryieeldnedq3wn.rpphqwiu@qhpklydwdorvmrjiruuivsxv]wiqmrjv]deiornpdjdui]dwdlphohwv]pohvn|uehqkdv]qioqdnjypghnetuynioodplwhvwohwhnpvhjhehn45$3rojiul3huuhqgwduwiv† ehnh]gpvhnlprqgmdkrjädjrqgqrnvijdoikhoh]pvlhomiuivedqd]doshuhvwhomhvshueholfvhohnyęnpshvvpjjhouhqghonh]ln´$mrjv]deioqhpkdwiur]]dphjplpuwhqgęsv]lfkpvioodsrwydjv]hoohplirjdwnr]ivdodww473wn† ehn ,elg gondnokság és emberi jogok magyarországon23a felnőtt személy cselekvőképességét megvonó bírósági ítéletet követően az ügy átkerül a helyi gyámhatósághoz, amely gondnokot jelöl ki. ha ez megtörtént, a gyámhivatal felelős a gondnokság felügyeletéért. ez magában foglalja a gondnok tevékenységének felügyeletét és a viták rendezését. a gondnokok döntései ellen fellebbezéssel lehet élni a helyi gyámhivatalnál, a gyámhivatalok döntése ellen pedig a megyei szintű gyámhivatalnál.49 bizonyos fellebbezéseket a közigazgatási bírósághoz is be lehet nyújtani, a fellebbezés természetétől és komolyságától függően.50 6 a magyar jogrendszer értékelése az emberi jogok szempontjábólaz mdac 29 indikátort dolgozott ki a gondnoksági jogszabályok értékelésére. mint megjegyeztük, ezek az indikátorok olyan nemzetközi emberi jogi előírásokból és normákból származnak, mint például az emberi jogok európai egyezménye és az európa tanács minisztertanácsának r(99)4. sz. ajánlása a cselekvőképtelen felnőttekről. ahol egy probléma vagy igény nem került világosan meghatározásra a nemzetközi jogforrásokban vagy normákban, ott a különböző országok nemzeti törvényeit és gyakorlatait vettük őgyelembe.az első indikátor a jogrendszert átható alapelvekről szól, talán jelezve a társadalom viszonyulását a pszicho-szociális fogyatékossággal élő személyek iránt. a többi indikátor – a gondoksági rendszereknek megfelelően – három fő területre oszlik. az első a felnőtt személy jogaival foglalkozik a gondnokság alá helyezés előtt. a második terület a felnőtt személy jogaival a cselekvőképtelenné nyilvánítás megvonása után: ide tartoznak a gondnok kötelezettségei és az elszámoltathatósága is. a harmadik terület a kevésbé korlátozó alternatívákat, valamint az elrendelt gondnokság felülvizsgálati és megszüntetési mechanizmusait vizsgálja.az alábbiakban az indikátor száma melletti keretben tömör leírás olvasható az adott indikátorról. ezután megállapítjuk, hogy magyarország jogszabályai megfelelnek-e az adott indikátornak, majd – a következtetések alátámasztására – a magyar jogszabályok speciális rendelkezéseinek elemzése következik. végül az „emberi jogi követelmény” című részben az mdac összehasonlítási alapot nyújt esősorban az r(99)4. sz. ajánlás és az emberi jogok európai egyezménye alapján. néhány olyan esetben, amelyre vonatkozóan e két dokumentum nem tartalmaz egyértelmű követelményt, különböző jogrendszerek példaértékű jogi gyakorlatát mutatjuk be. +dkholkdwyvij%xgdshvwhqydqdnnruihooheeh]pvehq~mwkdwy)ęyiurvl*ipklydwdoqdn pyl;;;,w|uypqjhuphnhnypghoppuęopvjipjlljd]jdwivuyo† ehnmental disability advocacy center242.6.1jogi alapelvek (1. indikátor)1. indikátora jogalkotás célja vagy a jogszabály preambuluma a mentális sérültséggel élők emberi jogainak, emberi méltóságának és alapvető szabadságjogainak tiszteletben tartását fogalmazza meg.megállapítás: az alkotmány és más jogszabályok is biztosítják a fogyatékossággal élő személyek egyenlő jogait, de a pszicho-szociális fogyatékossággal vagy értelmi sérültséggel élőkkel kapcsolatban ezen emberi jogi alapelveket ritkán alkalmazzák.elemzés: a magyar alkotmány elismeri minden ember alapvető jogait és szabadságát. az alkotmány 8. cikke kijelenti, hogy: a magyar köztársaság elismeri az ember sérthetetlen és elidegeníthetetlen alapvető jogait, ezek tiszteletben tartása és védelme az állam elsőrendű kötelessége. a magyar köztársaságban az alapvető jogokra és kötelességekre vonatkozó szabályokat törvény állapítja meg, alapvető jog lényeges tartalmát azonban nem korlátozhatja.az alkotmányon kívül egyéb jogszabályok is átvették az 1. indikátorban megfogalmazott alapelveket. 2001-ben a polgári törvénykönyv gondnoksággal kapcsolatos előírásait a pszicho-szociális fogyatékossággal és értelmi sérültséggel élők jogainak átfogóbb elismerése érdekében módosították. a módosítás miniszteri indokolása a következőket deklarálja: a törvény az érintettek autonómiáját a korábbiaknál jobban őgyelembe vevő, di erenciált rendszert, jogszabályi kereteket alakít ki, mely csak a legszükségesebb mértékben korlátozza az érintettek személyi szabadságát, döntési autonómiáját, ugyanakkor biztosítja, hogy – amikor ez szükséges – gyors és egyben alapos, megfelelő jogi garanciákat tartalmazó eljárásban történjen döntés a korlátozottan cselekvőképes, illetve cselekvőképtelen személy gondnokság alá helyezéséről. a törvény rendelkezéseinek kialakítása során alapvető jelentőséggel bírt az európa tanács r. (99) 4. számú, 1999. február 23-án elfogadott, a cselekvőképtelen nagykorúak védelméről szóló ajánlása. 51az egészségügyi törvény miniszteri indokolása52 hangsúlyozza, hogy az államnak biztosítania kell az egészségügyi szolgáltatások felhasználóinak általános emberi, 51$pyl;9wy,qgrnroivdfvhohnyęnpshvvpjjhojrqgqrnvijjdo|vv]hijjęhjhvw|uypqhnpygrvtwiviuyo pyl&/,9wy$]hjpv]vpjjuęo $wryieeldnedq (wygondnokság és emberi jogok magyarországon25polgári és egyéb releváns jogait.53 a jogalkotó felismerte annak szükségességét, hogy a mentális egészségügyi szolgáltatások használóinak speciális igényei vannak, és kijelenti, hogy a betegjogokat csak akkor lehet korlátozni, ha a) a személy veszélyeztető magatartást tanúsít és b) csakis addig, ameddig a veszélyeztetés fennáll.54a 2006-ban elfogadott új országos fogyatékosügyi program deklarálja a fogyatékos személyek méltósághoz, emberi jogokhoz és alapvető szabadságjogokhoz való jogának alapelvét. többek között az alábbi mércét állítja fel:a fogyatékos személyek nem jótékonykodás alanyai, hanem jogok birtokosai. a fogyatékos személyek nem beteg emberek, hanem saját sorsukért felelősséget vállaló, önálló személyek. nem eltartottak, hanem munkaképes fogyasztók. olyan emberek, akik nem igénylik, hogy sorsukról mások döntsenek, mert arra maguk is képesek. mindezekből következően az intézkedések meghatározásában, majd megvalósításában arra kell törekedni, hogy abból a fogyatékos személyek is kivehessek részüket. az önrendelkezés elve értelmében a fogyatékos emberek meglevő képességeik és lehetőségeik keretein belül szabadon rendelkeznek életük alakításáról. az önállóság kiterjed a személyes mozgás, az idő, a tulajdon és a saját test feletti önrendelkezésre. az önrendelkezés és az emberi méltóság tisztelete érdekében valamennyi támogatás odaítélésénél őgyelembe kell venni azt az elvet, hogy a fogyatékos ember maga rendelkezhessen élete célkitűzéseiről, az azokhoz vezető utakról, megvalósítandó emberi és morális értékeiről. a támogatásoknak nem szabad megfosztania a fogyatékos embereket mindattól, amit önállóan is el tudnak érni, amit önállóan is képesek megvalósítani.55 [kiemelés az eredetiben.]a program örvendetes előrelépést jelent, de meg kell jegyezni, hogy a pszicho-szociális vagy értelmi sérültséggel élők jogaira történő konkrét utalást a szöveg nem tartalmaz. a programot továbbá át is kell ültetni a gyakorlatba. emberi jogi követelmény: az r(99)4. sz. ajánlás 1. alapelve előírja, hogy a mentális fogyatékossággal élő személyek emberi jogai és méltósága iránti tiszteletnek az egész jogrendszert át kell hatnia:a belátási képességgel nem rendelkező felnőttek védelme során elsőrendű az emberi méltóság tiszteletben tartása. a belátási képességgel nem rendelkező felnőttekkel kapcsolatos jogszabályi környezet, eljárási rend és gyakorlat is az érintettek emberi jogainak és alapvető szabadságjogainak védelmén alapuljon.56 ezen alapelvet a vonatkozó törvényekbe egy preambulum megfogalmazásával vagy egy célirányos nyilatkozattal lehet átültetni. az emberi jogi alapelvek és az emberi 53$](wy,qgrnoivdèowdoiqrvlqgrnroiv´ehn54 ,elg ehn55 ,,2*
