Ability of Persons Deprived of Legal Capacity to Exercise Their Personal Rights

Abstract

In spite of ratified international documents, the protection of persons with mental health problems, intellectual or physical disabilities in the legal system of the Republic of Serbia is still enforced by legal institutes such as deprivation of the legal capacity and a placing of these persons under guardianship. These legal solutions especially does not resolve a question of exercising personal rights that can be done by their holders exclusively in case they are capable of it. Since the guardian is not entitled to enforce them, it emerges that these rights do not exist for persons deprived of legal capacity. This paper endeavors to address an issue on abilities of these persons to make legally binding decisions concerning these rights. Possible solutions to the matter can be found in establishing natural capacity of these persons and through their participation in decision making to the extent that their mental and psychical condition allows. In case that these persons do not have even a minimum of capacity for decision making, the guardian must take a legally binding decision on behalf of a person deprived of legal capacity either on his own or upon the consent of a guardianship authority. Thereby certain criteria have to be taken into account so that the decision is in the best interest of the person represented.