Conference paper

Guardianship Legislation Reform and the European Legal Framework

Ivana Milas Klarić ; Faculty of Law University of Zagreb, Zagreb, Croatia

Abstract

The institute of guardianship has traditionally protected persons with mental disorders in many legal systems in terms of the application of the institute of deprivation of legal capacity. The institute itself has seen many changes, especially from the point of view of comparative law. Development tendencies of the institute of guardianship are reflected in the application of the principle of autonomy and self-determination of adults, minimal restrictions of human rights, particularly as concerns personal rights, the right to enter into marriage, the right to parental care, the right to vote, etc. The importance of respecting human dignity and the person's best interest are explicitly emphasised as the most important criteria in making decisions regarding persons with mental disorders. In the light of the accession to the European Union, it can be concluded that, unlike some other branches of law or institutes, the institute of guardianship is not regulated in a uniform manner. Moreover, there are considerable differences in the regulations of different member states. However, three factors strongly contribute to the harmonisation of guardianship regulations.
The Convention on the Rights of Persons with Disabilities is the key international document for the protection of persons with disabilities, and also pertains to persons with mental disorders. Although a UN document, legally binding on all signatories, including the European Union, who has ratified it, it will certainly determine the development of guardianship protection in the European Union and the Republic of Croatia. The other significant factor for the harmonisation is the decisions of the European Court of Human Rights. In cases pertaining to persons with mental disorders seeking protection, the Court mainly rules on applications in which a breach of Article 8 of the Convention is claimed, i.e. the respect for private and family life. In addition, the numerous recommendations of the Council of Europe regarding the protection of the rights of persons with mental disorders should also be noted. The third relevant factor is EU documents. Article 26 of the Charter of Fundamental Rights of the EU is of particular importance for the integration of persons with disabilities. Human rights protection issues are becoming increasingly important within the EU, and as regards the protection of persons with disabilities, numerous documents are being adopted, still mostly pertaining to the matters of employment and social rights. However, regulation seems to be getting broader in scope.

Keywords

human rights of persons with disabilities; guardianship protection of adults; harmonisation of guardianship protection

Hrčak ID:

121897

URI

https://hrcak.srce.hr/121897

Publication date:

15.3.2014.

Article data in other languages: croatian

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