INCAPACITY — the legal concept meaning loss by the person of ability independently to carry out the civil rights and duties owing to the deep disturbances of mentality caused by a mental disease or weak-mindedness.
The concept «incapacity» is closely connected with the concepts «legal capacity» and «capacity». Legal capacity — a possibility of the person to have the civil rights and duties. Capacity — ability of the person the actions to carry out these rights and duties. Legal capacity admits equally for all citizens of the USSR from the moment of their birth and until death. Capacity is reached in full from 18-year age (article 8 of Bases of the civil legislation of USSR and federal republics).
Connecting emergence of capacity in full with occurrence of an age of majority, the law recognizes what from this age of people reaches a mental maturity and gains life experience, to-rye are sufficient correctly to understand and regulate the acts. If the full age citizen owing to deep painful disturbances of mentality loses ability to the correct understanding and regulation of the behavior, then it at the same time loses also an opportunity to independently carry out the civil rights and duties. From there is a need for recognition by its incapacitated.
N.'s criteria mentally sick are defined in civil codes of federal republics. In article 15 of the Civil Code of the Russian Federation it is told: «The citizen who owing to a sincere disease or weak-mindedness cannot understand values of the actions or directs them, can be recognized as court incapacitated...».
Variety mental diseases (see), various degree and depth of disturbances of mentality at them • cause need of allocation of two criteria of N. — medical and legal (psychological). The medical criterion combines all forms of the found painful mental states in the generalized concepts «sincere disease» and «weak-mindedness». The sincere disease includes the most various on symptomatology and a current the mental diseases leading to profound and permanent changes of the personality. Weak-mindedness (see) combines all conditions of permanent and a little reversible decline of mental activity. In both cases there is an expressed decrease or impossibility of social adaptation. The medical criterion demonstrates existence of a mental disease.
The legal criterion — inability to understand value of the actions or to direct them — determines depth (weight) of a mental disorder, edge deprives of the patient of an opportunity to independently carry out the civil rights and duties.
Recognition of the citizen incapacitated is carried out only by court in the order provided by codes of civil procedure of federal republics. For establishment of a mental condition of the person, the issue is resolved of capacity to-rogo, the court appoints sudebnopsikhiatrichesky examination (see). The expert opinion is subject to assessment by court. Over the citizen recognized by court incapacitated guardianship, a procedure is established the cut is regulated by the legislation on marriage and a family. Incapacitated has no right to make any civil transactions, from his name they are made by the trustee.
In case of recovery or considerable improvement of a mental condition of the person recognized earlier incapacitated the court recognizes it capable. On the basis of the judgment the guardianship established over it is cancelled.
The N should be distinguished from diminished responsibility (see). The question of sanity or diminished responsibility arises only at commission of penal act and belongs to a specific act. Unlike diminished responsibility N. mentally sick is connected with loss of ability to conscious behavior throughout more or less long time.
Along with full loss of capacity the law provides a possibility of its restriction at persons, to-rye, abusing alcoholic drinks or drugs, put the family in difficult financial position. On the basis of the judgment to such persons the trustee is appointed, without consent to-rogo they cannot receive the salary, pension and other types of income and to dispose of them, and also to make property transactions, except for small household. At the termination-faced abuses of alcoholic drinks or drugs the court cancels the decision, about restriction of his capacity on the basis of what the guardianship established earlier over it is cancelled.
Bibliography: Gilyarovsky In. A. Chosen works, M., 1973; The Guide to judicial psychiatry, under the editorship of G. V. Morozov, M., 1977; X about l about d to about in with to and I am E. M, Capacity mentally sick, M., 1967, bibliogr.,
I. N. Bobrova.