Deprivation of legal capacity is a sensitive legal intervention aimed at protecting the interests, property and dignity of the person in situations where he or she is unable to make informed legal decisions because of mental disorder, addiction, dementia or other health limitations. The court always assesses each case individually and imposes restrictions only to the extent necessary.
This topic is not just about the elderly or those with a serious diagnosis. In practice, it is also addressed in the business environment, for example, if the managing director of a family business has a medical condition that prevents him or her from performing properly and making key business decisions. Getting the legal situation right is then crucial not only for the protection of the person himself, but also for the stability of the company and the protection of the family’s assets.
Legal capacity, often referred to as autonomy, is the ability of a natural person to acquire rights and assume obligations by his or her own actions. In other words, it is the capacity to act independently, sign contracts, dispose of property, incur liabilities or make other legal decisions. The legal regulation is mainly contained in the Civil Code, which distinguishes between:
Full legal capacity is acquired:
Minors shall have capacity only to the extent appropriate to their age and mental maturity.
Yeah. If a person is unable to perform legal acts with sufficient understanding of their consequences because of a mental disorder, addiction or other serious medical condition, the court may decide to restrict him or her. Today, the law no longer provides for a complete deprivation of legal capacity in the original sense; the court must always define the precise scope of the restriction in a way that is appropriate to the particular situation and protects the person’s dignity.
For example, a person with limited capacity may:
The basic principle is always the protection of the person and their property, not the sanction.
The legal regulation of legal capacity is mainly contained in the Civil Code (Act No. 40/1964 Coll. ).
The basic starting point is contained in Section 8(1) of the Civil Code: a natural person acquires full legal capacity when he or she reaches the age of majority. The age of majority is attained when the person reaches the age of 18 years (Art. 8(2) CC).
The key provision is § Section 10(2) of the Civil Code A: If a natural person, because of a mental disorder which is not merely transitory or because of excessive use of alcoholic beverages or intoxicants or poisons, is able to perform only certain legal acts, the court shall limit his legal capacity and the extent of the limitation shall be determined in a decision.
The original wording of Section 10(1) of the Civil Code allowed for complete deprivation: if a natural person is incapable of performing legal acts at all due to a mental disorder that is not merely transitory, the court shall deprive him of his legal capacity. However, this institute has been legislatively changed and Slovak law is now based on the principle of protection of human dignity and proportionality of intervention. In practice, the procedure is no longer one of total deprivation, but always determines the specific extent of the restriction.
From a legal point of view, it is therefore important to formulate the proposal correctly; a too broadly worded deprivation of legal capacity no longer corresponds to the current philosophy of the law and may be problematic in practice.
The court may restrict legal capacity if a person is incapable of independent legal action to a certain extent because of a mental disorder that is not merely transitory. The legal basis for this regulation is contained in the Civil Code.
Importantly:
The court may order a restriction if the following conditions are met:
Diagnosis alone is not enough. What is crucial is how the specific disease affects the ability to understand the consequences of legal actions.
Court proceedings most often concern cases where a person:
The most common are:
An expert opinion from psychiatry or clinical psychology is always required.
But the court must always respect:
Capacity restriction is a last resort, used only when more lenient measures (e.g. empowerment, supportive decision-making) are not sufficient.
For example, a court may decide that a person:
In all other areas, however, the person remains fully entitled to act independently.
The aim of the procedure is therefore not the total loss of rights, but adequate protection while preserving as much autonomy as possible.
If a medical condition (e.g. advanced dementia or severe psychotic disorder) renders a person incapable of doing almost any legal act with an understanding of its consequences, the court can set the scope of the restriction very broadly. Even in such a case, however, the decision must specify exactly what the person can and cannot do.
However, if a person’s state of health objectively prevents him or her from understanding the meaning and consequences of his or her actions, the court may decide to limit that capacity. In practice, this is particularly the case in cases of serious mental disorders, neurodegenerative diseases or addictions, which are medically diagnosed and classified according to the International Classification of Diseases(ICD-10), which is also used by health insurers.
In forensic practice, we most often encounter the following diagnoses (codes according to ICD-10 / ICD-10):
Dementia
Dementia is one of the most common reasons for limiting capacity, especially in the elderly.
Schizophrenia and psychotic disorders
These diagnoses can affect the ability to make rational judgments about reality and the legal consequences of actions.
Addictions
Severe forms of dependence can seriously impair the ability to manage assets or make legal decisions.
In extreme cases, a person’s decision-making may be significantly affected by a disturbance in the perception of their own health status.
These diagnoses can be the reason for limiting competence from a young age.
Diagnosis alone does not automatically imply a limitation of legal capacity. The court always examines:
In particular, an expert opinion from the field of psychiatry or clinical psychology, which assesses the individual condition of the person, not just a formal diagnosis, is decisive.
Filing a petition for restriction of legal capacity (known in layman’s terms as deprivation of legal capacity) is a serious legal step that has a major impact on the rights of the person concerned. Therefore, the application must be precise, factual and legally correctly formulated. The legal basis is governed in particular by the Civil Code and the procedural procedure is laid down by the Civil Procedure Code.
Proceedings on the restriction of legal capacity are proceedings concerning the care of the court for natural persons and are governed by the Civil Procedure Code. The application cannot be brought by anyone, only a person or entity having a legally relevant relationship or legal authority has standing.
In particular, the eligible claimants are:
In exceptional cases, the court may initiate proceedings without a petition(ex officio) if it becomes aware of circumstances indicating the need to protect a person.
The plaintiff should be able to demonstrate:
In practice, the petition is most often filed by a family member who provides care for the person and addresses a situation where the person’s health condition leads to legal or property risks.
The petition shall be filed with the district court of the residence of the person whose competence is being adjudicated.
It is an out-of-court proceeding where the court actively ascertains the facts and is not bound by the parties’ submissions alone.
A properly drafted proposal is crucial to the speed and success of the proceedings.
Mandatory elements of the proposal
The proposal must include:
An incomplete or broadly worded application may lead to an invitation to complete the application and thus prolong the proceedings.
Description of health status
The proposal should clearly and specifically state:
It is not enough to make a blanket statement that a person is unable to care for themselves. The court must see specific manifestations and consequences.
One of the most common mistakes is an overly general motion of the type I am asking to be relieved of my legal capacity. Properly, the motion should include:
The court is obliged to determine the scope of the restriction precisely, therefore the proposal must be formulated specifically.
Without evidence, the court cannot make a decision.
Medical reports
The basics are:
The more detailed the medical documentation, the more efficiently the court can act.
Expert opinion
In most cases, the court will appoint an expert in psychiatry or clinical psychology.
The expert opinion answers the question of whether the person:
Expert evidence is the most common reason why proceedings take several months.
Witness statements
The court may hear:
These accounts help to shed light on the day-to-day functioning and practical impact of the health condition.
The parties to the proceedings are in particular:
The person concerned is always at the centre of the court’s attention. He is not merely the subject of the proceedings, but a full participant whose rights must be respected.
Even if a limitation of his or her capacity is being considered, the person has procedural rights during the proceedings. The court assesses whether he or she is competent:
If her health so requires, the court may appoint a procedural guardian to represent her in the proceedings. The aim is not to silence the person, but to ensure that his or her interests are properly protected.
In proceedings for the restriction of legal capacity, the court is obliged to hear the person in person if his or her state of health so permits. This obligation derives from the procedural rules contained in the Civil Procedure Code and constitutes an important element of the protection of the fundamental rights of the person concerned. Questioning is not a formality. It is a person’s right, guaranteed by law, to be heard on a matter which immediately concerns him or her.
The court shall proceed sensitively and individually, taking into account in particular the health and psychological state of the person. In practice, questioning often takes place:
If the state of health does not permit personal attendance at the hearing, the court may conduct the questioning, for example, in a medical facility or other suitable place. Even if the proceedings concern a possible restriction of rights, the person remains a full participant in the proceedings. The court must take his/her opinion into account and evaluate it together with other evidence, in particular expert evidence. The hearing is therefore not directed against the person; it is a legal guarantee that his or her rights will not be decided without giving him or her the opportunity to be heard.
In proceedings to restrict legal capacity, the court will in most cases appoint an expert in psychiatry or clinical psychology. Expert evidence is a key means of proof without which it is generally impossible to decide on the interference with a person’s rights. The expert, as an independent expert, first examines the medical documentation, then examines the person in person and, on the basis of his or her professional judgement, draws up a written expert report. The report must be specific, comprehensible and answer the questions put to it by the court.
The expert opinion focuses in particular on whether the person:
It is important to stress that a diagnosis alone does not automatically imply a limitation of capacity. What is decisive is the specific impact of the medical condition on the ability to act legally. Expert evidence is not a formal step. It is a professional basis to ensure that the court’s decision is fair, proportionate and respects the principle of proportionality. The aim is to strike a balance between protecting the person and preserving his or her autonomy as far as possible.
A common question from clients is: how long does it take to be deprived of legal capacity? Although the term is still used, legally it is a procedure for the restriction of legal capacity.
The exact length of the procedure depends on a number of factors, but it is a process that requires careful evidence and an individual assessment of the person’s health.
In practice, the procedure takes approximately:
The speed of the proceedings depends mainly on the court’s caseload and the availability of experts.
The process most often prolongs:
If the petition does not contain all the statutory requirements or the scope of the requested restriction is not correctly formulated, the court calls for supplementation, which extends the proceedings for months.
The most significant factor influencing the length of the proceedings is the expert opinion in the field of psychiatry or clinical psychology. As a rule, the court:
1. appoint an expert,
2. the expert examines the person under consideration,
3. prepare a written opinion,
4. if applicable, is heard at the hearing.
The preparation of an expert report can take several months, mainly due to the shortage of experts and their high workload. However, without expert evidence, the court generally cannot make a decision.
After taking evidence, in particular after questioning the person and drawing up an expert report, the court shall give its decision on the case. The decision must be factual, specific and in accordance with the principle of proportionality under the Civil Code and the procedural rules laid down in the Civil Procedure Code. The court may not make a general or vague decision. Any limitation must be clearly and precisely formulated.
The court must specifically determine the extent to which competence is limited. It cannot be a general finding that the person lacks capacity. The extent of the limitation must be precisely specified, for example:
The decision should be worded in such a way that it is understandable to the person, the guardian, banks, authorities and third parties.
If necessary, the court shall appoint a guardian in the same decision. The guardian is usually a close person who is competent to act in the interests of the person concerned.
The court shall also determine the scope of the guardian’s powers. Guardian:
For serious legal transactions (e.g. sale of property), additional court approval may also be required.
Proceedings on the restriction of competence are out-of-court proceedings. As a rule, no court fee is payable as it is a proceeding concerning the care of natural persons by the court.
However, costs may be incurred, in particular for:
A decision to restrict capacity is a fundamental interference with a person’s rights. It must therefore be precise, proportionate and based on thorough evidence. The correct scope of the restriction is crucial not only for the protection of the person, but also for the legal certainty of his family and third parties.
The restriction is always decided by the court, it is an individual decision issued in proceedings under the Civil Procedure Code and substantive law based on the Civil Code.
Yeah. If the court has decided to limit your capacity, there must have been a hearing and the court has issued a written decision (judgment/ordinance) which is served on the parties. No one can be deprived or limited of their capacity without a court decision.
No. The electronic identity card (eID) does not display information on the restriction of legal capacity. There is no publicly accessible database where this fact is automatically verified when an electronic signature is used. Technically, a person with reduced capacity can electronically sign documents if he/she has a valid ID card with a chip and activated certificates, he/she can create a qualified electronic signature. If a court has ruled that a person cannot independently enter into, for example, loan agreements or dispose of real estate, then such an electronically signed legal act would be legally questionable (e.g. due to lack of capacity). The fact that the system allows a document to be signed does not mean that the act is valid.
The restriction of legal capacity is always the result of a court proceeding in which the person has the right to be heard. There is no secret deprivation of legal capacity or administrative procedure without a court decision. If in doubt, it is advisable to have the situation legally checked.
If the court decides to restrict legal capacity, it will usually appoint a guardian at the same time. A guardian is a person who represents the person concerned to the extent determined by the court’s decision and protects his or her personal and property interests. The legal framework is mainly based on the Civil Code and the procedural provisions of the Civil Procedure Code. The institution of guardian is not formal. It is a statutory function with responsibility and control by the court.
The court appoints the guardian individually according to the circumstances of the case. Preference shall be given to a person who has a close relationship with the ward and is capable of performing the function properly.
In particular, the guardian may be:
In particular, the court examines:
If there is a conflict of interest between the guardian and the ward (e.g. a property dispute), the court may appoint another person.
The scope of the powers and duties derives from the law and from the decision of the court. The guardian may act only to the extent that the person has been restrained.
Asset management
One of the main duties is the proper management of the ward’s property. The guardian is obliged to:
For major transactions (e.g. sale of real estate, transfer of larger assets, encumbrances on credit), prior court approval is usually required.
Representation
The guardian represents the person before:
However, it cannot act beyond the court’s decision.
Regular reports of the Court
The guardian is subject to the supervision of the court. The court may impose a duty:
This mechanism provides a check on the performance of the function.
Responsibility of the guardian
The guardian shall be responsible for the proper performance of his or her duties. Should he act contrary to the interests of the ward or cause damage by improper administration of the property, he may:
The restriction of legal capacity is not an irreversible decision. If the person’s state of health improves or circumstances change, an application may be made to vary the extent of the restriction or to restore the capacity altogether. According to the Civil Code, the court will examine whether the grounds for the restriction continue to exist. The application may be made by the person himself, by the guardian or by a close person. The court shall re-examine the evidence, usually including expert evidence. At the same time, the law provides that decisions to restrict capacity are subject to periodic review in order to ensure that the interference with the person’s rights lasts only as long as is actually necessary. The aim is always to preserve as much of the person’s independence as possible, if his or her state of health allows it.
A restriction of legal capacity is a court decision restricting a person’s ability to perform certain legal acts independently because of a mental disorder or addiction. It is not a punishment but a protective measure to protect the person and his or her property.
The term deprivation of liberty is now used rather loosely. According to the Civil Code, the court will usually limit the capacity to a precisely defined extent. Complete deprivation as a blanket intervention is no longer applied in practice.
If a person is unable to perform legal acts to a certain extent because of a mental disorder that is not merely transitory or because of an addiction. The court always examines the specific impact of the illness on the capacity to make decisions.
The petition can be filed by a close person (e.g. spouse, parent, child), a social services institution, the prosecutor’s office, or the person themselves. Proceedings shall be initiated on application or, exceptionally, without application.
The petition shall be filed with the district court of the residence of the person whose competence is being adjudicated. The procedure is also regulated by the Civil Procedure Code.
The proposal must include:
Incorrect or incomplete filing can significantly prolong the procedure, so it is advisable to consult a lawyer.
The procedure for restriction of competence usually takes between 6 and 12 months. The most common reason for delays is expert evidence, as the court has to rely on the expert opinion of a psychiatrist or psychologist.
Yes, in principle it can. Restriction of legal capacity alone does not automatically imply a ban on travelling abroad. The specific extent of the restriction, as determined by the court under the Civil Code, is decisive. In the decision, the court determines exactly in which areas the person is restricted (e.g. property transactions, loans, real estate disposal). If the decision does not contain a restriction on movement or residence, the person may travel in the same way as other citizens.
The family alone cannot deprive anyone of his or her legal capacity. A court decision is needed.
If you suspect that there are proceedings pending in the case:
It would be a serious violation of the law for someone to impersonate a guardian without a court order.
The placement of a person who has been reduced in legal capacity in a nursing home or social services facility does not automatically mean that a new court procedure is necessary. What is decisive is the scope of the guardian’s powers under the court decision issued under the Civil Code and the procedure under the Civil Procedure Code. If, for example, the person does not consent to the placement and his or her state of health does not allow him or her to give informed consent, it may be necessary to deal with the matter procedurally (especially if it is an institution with a medical regime). Placement in a nursing home does not in itself mean that the guardian must be changed.
Expert evidence is usually crucial in proceedings for the restriction of legal capacity. The court usually cannot make a decision without an expert assessment of a person’s medical condition. The most common expert is an expert in psychiatry or clinical psychology (adult psychology). It can take several months to prepare an opinion. In practice, the lack of experts is the most common reason why the procedure for restriction of competence takes 6-12 months or even longer.
In most cases, yes. The court will usually appoint an expert in psychiatry or clinical psychology to assess the person’s capacity to perform legal acts.
Yes, this is a fairly common situation in practice. During minority, the child is represented by the parents as legal representatives. A minor child does not have full legal capacity (Article 8 of the Civil Code). On reaching the age of majority, the child automatically acquires full legal capacity, irrespective of his/her state of health. However, if a person with severe mental disability, autism, combined disability or other permanent mental disorder is objectively incapable of independent legal action, the situation needs to be regulated by law.
Yeah. A person has the right to be heard and to defend himself or herself. The court must respect his or her procedural rights and dignity.
The court appoints a guardian, usually a close person who is competent to act in the interests of the person concerned. The guardian shall represent the person to the extent determined by the decision of the court and shall be subject to the control of the court.
The guardian appointed by the court does not have to live with the person whose legal capacity has been restricted. It is important that he or she is able to perform the function properly and to act solely in his or her interests.
If the guardian is a close person (e.g. parent, spouse, child), the exercise of the function is usually gratuitous. The law assumes that the exercise of the function is in the context of family solidarity and the protection of a close person. If a municipality or other public entity is appointed as guardian (e.g. if there is no suitable natural person), the exercise of the function may be ensured within the framework of the statutory mechanisms and public administration funding. If the court awards remuneration, it is generally paid out of the property of the ward. If the assets are insufficient, the court shall take into account the specific situation.
Yeah. The guardian appointed by the court bears legal responsibility for the performance of his/her function, to the extent determined by the court decision and according to the Civil Code. The function of the guardian is not a formal one; it is a legal obligation to act with professional diligence and solely in the interests of the ward. However, the guardian is not automatically liable for crimes or fraud committed by the ward. If the person has committed fraud or other crimes before the person’s capacity was limited and the medical condition was not known or legally addressed, the guardian is not liable for those acts.
Yeah. If the health condition improves or deteriorates, a proposal may be made to change the extent of the restriction or to reinstate competence.
The law does not expressly require it, but given the sensitivity of the proceedings, the expert evidence and the formulation of the scope of the restriction, expert representation is highly appropriate. This is all the more true in situations where the person involved is a director or statutory body of a company, particularly where significant corporate assets, decision-making powers, signatory authority or contractual obligations are tied to that person. An improperly or inadequately worded proposal may have a significant impact not only on the person himself but also on the company’s functioning, banking relationships, business contracts or asset management. It is the interplay between family, civil and commercial law that makes these cases legally complex and requires a strategic and professional approach.
The court proceedings are generally free of court fees, but costs are incurred for expert reports and legal representation. The specific amount depends on the circumstances of the case.
No. That’s not how it works. Restriction of legal capacity is not a tool to gain control over another person’s property. It is a protective measure designed to protect the interests of the person concerned, not the interests of family or third parties. The guardian is not free to dispose of the person’s property. For serious transactions, such as the sale of immovable property, the transfer of larger assets, the conclusion of a loan agreement, prior court approval is generally required. If the petition is filed purposely in order to obtain property, the court may reject it and, in extreme cases, there may be legal consequences (e.g. criminal consequences in case of abuse of the guardian’s authority). It is a legal mechanism to protect a person who is unable to protect his or her own interests due to a medical condition. That is why proceedings to limit capacity are strictly controlled by the court and subject to expert evidence.
Restriction of legal capacity (known in layman’s terms as deprivation of legal capacity) is one of the most sensitive court proceedings. It interferes with a person’s fundamental rights, dignity, property and family relationships. At the same time, it can be a necessary and correct solution in situations where a person’s health condition poses a real threat to their own interests or to the stability of their family or business. Each case is individual. The details, the medical documentation, the formulation of the scope of the restriction, the expert evidence and the correct procedural steps are decisive. Particularly sensitive are situations involving a person who is the managing director of a company or who manages significant assets.
Law & Tax
Tomas Demo
tomas.demo@highgate.sk
Accounting
Peter Šopinec
peter.sopinec@highgate.sk
Crypto
Peter Varga
peter.varga@highgate.sk
