Caring for a loved one: Judicial Guardianship

Stand By Me…

fatherandsonIn our lives, we take many things for granted and we rely on comfortable settings and situations, thinking that they will always be like that. Our loving mother will always take care of us and she will always be there to listen, give advice, and comfort us. Our caring father will always support us, be the voice of reason, and cherish us as his little princess or prince.

As time passes by, there comes a moment, when these roles might need to be reversed and we need to assume the role of the care giver for the ones that used to take care of us. Within the Greek legal system, there is the process of Interdiction, or to put it more plainly, the process where a Court of Law appoints a guardian to take care of an adult, who is no longer able to take care of their personal affairs.

Who can be put under Judicial Guardianship

The benefit of Judicial Guardianship can help any adult person, who is either physically or mentally incapable of managingfile0001552156272 their own lives and their own affairs on a permanent basis. It is up to the Court to decide whether the physical or mental impediment is grave enough to warrant an Interdiction and each case is scrutinized very carefully and very thoroughly. The Judge will very often consult with expert physicians, psychologists, psychiatrists, neurologists, or other competent medical doctors, who will advise on the severity of the case and the necessity of taking appropriate measures for the safety and well being of the person to be put under Judicial Guardianship.

According to the Greek Civil Code, there is another instance, when an adult can be put under Judicial Guardianship; that is when a person is being “prodigal”, or is a substance abuser, or an alcoholic, and as a result becomes a threat to their spouse, their children, their parents, or even themselves. Characteristic examples from case law studies include schizophrenia, dementia, manic depression, and so on.

It doesn’t matter whether the condition is permanent, or curable, or treatable. What is important is to help the person with their personal affairs and their overall wellbeing.

Two other instances are described in the same statute: a) An incarcerated person may be put under auxiliary Court ordered Guardianship, if their sentence is longer than two years, and b) A minor, who might fall under one or more the above mentioned prerequisites and is about to become of age can be put under Interdiction, but the court decision takes effect as the minor comes of age.

Who can file the Motion for Interdiction

A court will hear an Interdiction case after a motion by:

1) The person, who is voluntarily asking for a court ordered Guardianship. If the person is only suffering from a physical impediment, no one else can file on their behalf.

2) The spouse of an incapable person, their parent, their child, the District Attorney, or the Judge of the Court.

3) The guardian of a minor, who is about to become an adult.

4) The incarcerated person.

The law is very strict on who can file. Only the enumerated persons above can file such a motion and no one else.

Who is going to be the Guardian

file000441681066In deciding who is going to hold that extremely important, sensitive, and responsible position of a court ordered Guardian, the court always looks out for the incapable person’s best interest. That’s why the person to be put under Judicial Guardianship gets to pick their Guardian, if they are able to express their will. If that’s not the case, or if the person picked to be Guardian is deemed unfit for the position, the Court is free to pick anyone, who is willing, able, and fitting for the position. Furthermore, the Court can ban any person, who might have a conflict of interest with the incapable person, from interfering with their affairs.

The Guardian has to be of sound mind and capable of performing the duties assigned to her/him. If there is no such person in the immediate family of the incapable person, then the state steps in and assigns a person from the relevant social services.

What happens after a person is put under Interdiction

The Court will decide whether the incapable person may perform any acts of legal significance. If the person is declared absolutely incapable, then the Guardian must overtake completely and perform all necessary legal acts on behalf of the incapable person. If the person is deemed partially incapable, then this person’s actions will only be valid, if the Guardian approves and co-signs. Of course, the Court is free to combine the two options and decide what’s best for each individual case.

What constitutes acts of legal significance, you ask. Well, that can be anything from purchasing or selling property; to donating or accepting donated property; paying or receiving payments and issuing receipts; signing any legal documents; participating in any oral contracts; or assuming any kind of legal obligations. There are many other social activities of little or no legal significance that the incapable person can freely perform (attending social gatherings, sending out season’s greeting cards, friending on un-friending others) as long as none of those activities create legal obligations.

The Interdiction takes effect immediately after the relevant court decision is published and the Guardian assumes her/his duties as soon as the decision becomes final (i.e. after an appeal or after the time limit for an appeal has passed). In the interim, a court appointed temporary Guardian performs the duties of the permanent one.

How is it done

An attorney needs to file with the Single Member Court of First Instance. Throughout my many years of practice in Greece, I have handled numerous sensitive cases of this nature, where a loved one was not even capable of understanding why this needed to be done for them. I advised the relatives to be understanding and patient, comforting and kind. That way, the whole process is smoother and easier on everyone involved. I have filed applications for placing an individual under Court ordered Guardianship and relevant injunctions for managing similar situations short term through a temporary Guardian. I am very proud to state that all of them were concluded speedily and appropriately.

Respect for our loved one’s personality

The cornerstone in the procedure of placing someone under Judicial Guardianship
is the protection of that person’s dignity. All the people involved, from the relatives, who seek to help a loved one, to the doctors and specialists, who care for the patient and monitor their condition, to the Judge and the DA, who are primarily responsible for the decision that will affect the incapable person’s life, everyone should have one thought on their minds: this human being is an individual, who deserves respect, attention, protection, love, and the best care possible.

I encourage you to ask questions in the comments below.

2 thoughts on “Caring for a loved one: Judicial Guardianship

  1. Thanks for your article. Do you know if a Guardianship order from a court in US would be honored in Greece? My cousin lives in NY but inherited property in Greece (where he lived for many years) and now is in a nursing home… probably lacks capacity and could not travel to a Greek Consulate to sign a Greek Power of Attorney. If we bring a guardianship in NYS could that be filed and honored in Greece? Appreciate any thoughts.

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    1. Hello, Valerie.
      Thank you for your comment and your question. A court decision by a US court can be honored in Greece, as long as it is properly translated and “probated” or officially “publicized” in Greece by a Greek court. If your cousin has mental capacity, but cannot visit the Greek Consulate to sign a Power of Attorney, you do not need to put him under guardianship. You can make arrangements to have a Consulate employee to visit him at the nursing home to sign the PoA. You can send me a direct email with more information, so I can look into it more and give you a more specific answer. My direct email is christos@kiosses.com

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