Depriving of the ability to act is used in Poland too arbitrarily and in violation of the UN Convention on the Rights of Persons with Disabilities.
Incapacitation, i.e. partial or total deprivation of a natural person's ability to act, shall take the form of a judicial decision under the provisions of the Family and Care Code (CRI). In many countries, alternative forms of support for persons with disabilities and their surroundings have been withdrawn. It still functions in Poland, unfortunately very flawed.
Theory vs Practice
Code allows two types of incapacitation: complete or partial. first deprives the person of his or her incapacitated ability to act, except in the case of the conclusion of contracts "commonly concluded in the minor current affairs of daily life, such a contract shall become valid upon its execution, unless it entails gross harm to the person unable to act" (Article 14. section 2 Civil Code). Partial incapacitation has the capacity to act, but under the jurisdiction of a statutory representative.
In theory, the person concerned should be heard immediately after the initiation of the procedure. The hearing should take place in the presence of an expert psychologist and, depending on the health status of the person to be heard, an expert psychiatrist or neurologist.
Poland has ratified 2012 UN Convention on the Rights of Persons with Disabilities. The text of the Convention has been published with some cardinal error in translation. Well, the English phrase legal capacity was translated as "legal capacity", whereas in fact the intention of the authors of the Convention was not so much to grant to persons with disabilities legal capacity as to other persons, more specifically than the legal capacity of the understood, the ability to act.
The decision to incapacitate may not be given a period of time, but may be revoked if the reasons for which it has been decided cease. For the sake of the interests of the deprived person, therefore, there is a breach of the principle of complaint in civil proceedings. An incapacitated person who is not in principle able to take any action in the proceedings may, however, challenge the decision taken in the proceedings concerning his incapacitation. It therefore has full procedural capacity in this respect.
In practice, in many cases, the decision to be deprived of the capacity to act often violates fundamental human rights – meetings with the expert in a hurry only confirm the line of the applicant for incapacitation. And whether a person can already be restored to full civil rights – nobody checks.
Without fundamental rights to perform legal acts, often isolated, a person with disabilities remains excluded for life not only legally but socially. As stated during the First Congress on Civil Rights in December 2017 Prof. Roman Wieruszewski, incapacitation is now equivalent to civil death.
Although Poland has ratified 2012 The UN Convention on the Rights of Persons with Disabilities, the overarching objective of which is to protect and ensure the full and equal exercise of human rights and fundamental freedoms by persons with disabilities on an equal footing with all other citizens.
The text of the Convention is published in OJ of 25 October 2012, item 1169., as pointed out by the Ombudsman with some cardinal error in translation.
The English phrase legal capacity was translated as ‘legal capacity’, whereas in fact the intention of the authors of the Convention was not so much to grant to persons with legal disabilities the same capacity as to other persons, more strictly than the legal capacity understood, the ability to act.
The text of the Convention, drawn up in English as well as the acts of international law preceding its adoption, as well as the position of the Disability Rights Committee and the reservations raised to Article 12 Convention by other States Parties.
If not incapacitated, then what?
The RPO calls on the Minister of Justice to abolish the institution of incapacitation and replace it with a system of supported decision-making. How can we read in the publication of the Polish Anti-Discrimination Law Society from 2012 “If not incapacitated, what?
Legal forms of support for people with intellectual disabilities: "The idea of supported decision-making has been spread internationally by NGOs working for people with intellectual disabilities on the day 6 October 2004 After the PAHO/WHO conference in Montreal, at the end of which the Declaration on Intellectual Disability was issued.
This Declaration underlines that all persons with intellectual disabilities, regardless of their degree, have the right and the ability to make decisions concerning their own lives, development, relationships with other people and participation in social life.
This right implies an obligation to assist them in making or communicating those decisions and an obligation to respect such decisions, taken with support.
The Declaration calls on governments to introduce legislation promoting supported decision-making for all persons who have problems with or communicate with independent elections and to provide adequate support and benefits to all persons with intellectual disabilities.
It has been indicated that no circumstances should justify the total deprivation of a person's legal capacity — such extreme decisions should concern only specific areas of life in which the person is actually incompetent and be temporary and subject to regular assessment of their legitimacy’.
Such an alternative to incapacitation would therefore require not only a change of law, but also the involvement of the entire body of experts (who are already too few) and, therefore, a redirection of significant resources from the state budget.
The disqualification position for the protection of the State of persons with disabilities was presented by both the current spokesman, Adam Bodnar, and earlier by his predecessors, in the course of a legislative procedure to amend the Civil Code in the area of legal capacity under the Civil Law Codification Commission to the Minister of Justice. Unfortunately, according to the last reply of the Minister of Justice from 7 February 2018: „Without denying the need for legislative work in this area, I kindly inform you that due to other priority projects and tasks carried out at the Ministry of Justice, such work is not currently being carried out."