Guardianship and Constant Care During Martial Law in Ukraine

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Отсрочка от мобилизации

In wartime conditions, Ukrainian citizens make every effort to ensure the protection of the state and bring our victory closer. However, there are close people who need our help the most.

The current legislation provides for two most common grounds for obtaining a deferment from mobilization, which require additional documentation – these are the registration of guardianship over a person recognized as legally incapable and constant care.

Many confuse guardianship with constant care.

That is why the idea arose to prepare this article with the relevant explanations.

What is the difference and what is the procedure for registration? We will explain further.

A conscript may be appointed as a guardian of a legally incapable person or a caregiver of a relative who needs constant care. According to Article 23 of the Law of Ukraine “On Mobilization Preparation and Mobilization,” these are two separate grounds for obtaining a deferment from conscription during mobilization, for a special period.

It is important to distinguish between the concepts of guardianship and custody:
Guardianship is established over minor persons (under 14 years old, who are orphans or deprived of parental care) and persons who are recognized as legally incapable.

Custody is established over minors (from 14 to 18 years old, who are orphans or deprived of parental care) and persons whose civil capacity is limited.

Thus, a guardian is appointed if a person is recognized as completely legally incapable. A custodian is appointed when a person’s capacity is limited. Guardianship is an undeniable ground for deferment from conscription during mobilization and provides the right to cross the border accompanied by the ward. Guardianship, unlike constant care, is established exclusively by a court in a separate proceeding.

What is the procedure for appointing a guardian?

An individual can be recognized by a court as legally incapable if, due to a chronic, persistent mental disorder, they are unable to understand the significance of their actions and/or control them. If these grounds are present, a close relative of such a person can file a petition in court to recognize the person as legally incapable, establish guardianship, and appoint them as a guardian.

The court appoints a forensic psychiatric examination to confirm or refute the presence of a mental disorder that has led to the inability to understand their actions or control them. The expert examines the person over whom guardianship will be established to determine whether they really have a mental disorder that makes them unable to understand the significance of their actions and/or control them.

Guardians are mainly appointed from individuals who are in family or kinship relations with the ward, considering the personal relationships between them and the person’s ability to fulfill the duties of a guardian. One or several guardians may be appointed.

To have a guardian appointed for a legally incapable person by the court, it is mandatory to obtain a submission from the guardianship and custodianship authority about the possibility of appointing a relative as a guardian. After receiving the expert’s conclusion by the court, the future guardian submits a petition to the guardianship and custodianship authority for the relevant submission.

When considering the petition, the future guardian must participate in the meeting of the guardianship council. Based on the results of the guardianship council meeting, the guardianship and custodianship authority must send a submission to the court about the possibility or impossibility of appointing the person as a guardian. After the court receives the expert’s conclusion and the submission from the guardianship and custodianship authority, the court makes a decision based on the results of the court hearing. The person is considered legally incapable from the moment the court decision comes into force. In the case of a positive court decision, a copy of the decision is submitted to the guardianship and custodianship authority, where the guardian is issued a guardian’s certificate.

Important! The court fee for filing a petition to recognize a physical person as legally incapable and appointing a guardian is not paid; it is borne by the state.

A copy of the court decision on the appointment of a guardian with a note on its entry into force and the guardian’s certificate are the two documents that confirm the conscript’s right to deferment from conscription during mobilization on the grounds of guardianship over an adult person.

What is the procedure for arranging constant care for obtaining a deferment?

Paragraph 61 of the “Procedure for the Conscription of Citizens for Military Service during Mobilization, for a Special Period” No. 560 of May 16, 2024, provides for granting a deferment from conscription during mobilization and its arrangement for conscripts who provide care (constant care):

  • for a sick wife (husband), child, and/or their own father or mother (father or mother of the wife (husband), if they themselves require constant care according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution, have died (killed), are recognized as missing or absent, declared dead, and the father or mother of the wife has no other able-bodied family members who are obliged and able to provide care for them), who, according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution, require constant care;
  • for their own parents with disabilities of group I or II or one of the parents of the wife (husband) from among persons with disabilities of group I or II, provided there are no other persons who are not conscripts and are obliged to support them according to the law (except in cases where such persons are themselves disabled, require constant care, are under arrest (except for house arrest), are serving a sentence in the form of restriction or deprivation of liberty). In the absence of non-conscripts to provide care for a person with disabilities of group I or II, only one person from among the conscripts may provide care at the choice of the person with disabilities;
  • for persons with disabilities of group I or II, being a family member of the second or third degree of kinship for such a person (no more than one and provided there are no family members of the first and/or second degree of kinship or if the family members of the first and/or second degree of kinship themselves require constant care according to the conclusion of the medical-social expert commission or the medical-consultative commission of the health care institution). In the absence of family members of the first and second degree of kinship, this norm applies to family members of the third degree of kinship of the person with disabilities of group I or II.

To do this, it is necessary to contact the family doctor to obtain a medical certificate (or in the LCC, MSEC). Medical certificates issued specifically for social security authorities are in the prescribed form. To arrange care, the certificate must contain the key phrase: “the person requires constant care.”

The procedure for establishing constant care is simpler than guardianship because there is no need to judicially recognize a person as legally incapable.

To arrange constant care for a person who needs it, you need to contact the center for administrative services (CNAP) at the place of residence/stay of the person in need of care, the structural unit for social protection of the population, and obtain documents for receiving compensation (allowance, supplement) for care or arrange an act on establishing the fact of providing care (constant care).

The preparation of acts establishing the facts of providing care (constant care) is ensured by the Social Protection Department.

If all necessary documents are available for obtaining a deferment from conscription, it is necessary to write an application for a deferment and submit it to the district TCC and SP, where the person is registered for military service. This application, along with attachments, is submitted personally by the conscript.

Note that the issue of granting a deferment is initiated exclusively by the conscript, who must notify the TCC and SP about the change in family circumstances and the emergence of the right to a deferment.

The TCC and SP review this application along with the documents, and as a result, the person will be notified about the deferment. If necessary, a note about the deferment and its duration may be made in the military registration document.

For a detailed legal consultation in Kyiv, you can contact the lawyers of the law firm “First Legal” by filling out the form on our website or calling us at: +38 (044) 35-35-164, +38 (067) 306-89-89, +38 (063) 45-85-448, +38 (099) 367-89-89.


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