Supported Decision-Making Instead of Guardianship

Limiting legal capacity – placing a person under guardianship – constitutes a severe interference with a person’s fundamental rights. Hungarian law therefore treats guardianship as a measure of last resort and gives priority to legal institutions that preserve the self-determination of the affected person. Below, we present the current regulatory framework for supported decision-making, guardianship, and related legal institutions.

Applicable Legislation

• Act V of 2013 – Civil Code (Ptk.) – rules on legal capacity (Sections 2:8–2:24), guardianship (Sections 2:28–2:37), supported decision-making (Sections 2:38–2:40), advance directives (Sections 2:41–2:44)
• UN Convention on the Rights of Persons with Disabilities (CRPD, promulgated by Act XCII of 2007) – Article 12: equal recognition before the law and legal capacity
• Act CLV of 2013 – on supported decision-making
• Act IV of 1952 (applicable provisions) and Act CXXX of 2016 (Pp.) – procedural rules for guardianship proceedings
• Act XXXI of 1997 – on the protection of children and guardianship administration (Gyvt.) – duties of the guardianship authority

The UN CRPD and the Paradigm Shift in Hungarian Law

The Requirement of Article 12

CRPD Article 12 requires States Parties to recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and to provide support necessary for the exercise of legal capacity. In the spirit of the Convention:

• Limiting legal capacity must not be an automatic consequence of disability or old age
• Supported decision-making must be preferred over substitute decision-making (guardianship)
• All restrictions must be proportionate and necessary

Hungary ratified the CRPD through Act XCII of 2007, and the 2013 Civil Code structured its legal capacity rules in accordance with this approach.

The System of Legal Capacity Under the Civil Code

The Civil Code applies a three-tier system, progressing from the least restrictive measure to the most severe:

1. Supported Decision-Making (Sections 2:38–2:40 Ptk.)

The least restrictive measure. The supported person retains full legal capacity – the supporter is present alongside them, not in their place.

Conditions for appointment (Section 2:38(1) Ptk.): The court appoints a supporter for an adult who, due to a minor degree of decline in their capacity for judgment, requires assistance in conducting their affairs, but whose legal capacity need not be restricted.

Duties of the supporter (Section 2:38(2)–(3) Ptk.):

• Informing the supported person about the content and consequences of decisions affecting them
• Being present during the making of legal declarations and assisting communication
• Facilitating the assertion of the supported person’s will

What the supporter may NOT do:

• Make decisions in place of the supported person
• Make legal declarations on behalf of the supported person
• Restrict the supported person’s freedom of decision

Supported decision-making does not diminish the validity of the supported person’s legal declarations – the person independently enters into contracts, makes wills, and votes.

2. Partial Limitation of Legal Capacity (Sections 2:19–2:21 Ptk.)

Where supported decision-making does not provide sufficient protection, the court may partially limit legal capacity. Partial limitation:

• May extend only to specified categories of affairs (Section 2:19(3) Ptk.) – e.g., real property transactions, asset management
• In categories not subject to limitation, the person retains full legal capacity
• The court must precisely indicate in its judgment which categories are subject to limitation

3. Full Limitation of Legal Capacity (Sections 2:22–2:24 Ptk.)

The most severe intervention, applicable only where:

• The person’s capacity for judgment is entirely absent – permanently or periodically recurring (Section 2:22(1) Ptk.)
• Management of their affairs cannot be ensured by other means

Legal declarations by a person under full limitation are void – the guardian acts in their place (Section 2:23 Ptk.). However, the person under guardianship may independently make legal declarations of minor significance satisfying the ordinary needs of everyday life (Section 2:22(3) Ptk.).

Guardianship (Sections 2:28–2:37 Ptk.)

Who May Request It?

Guardianship may be requested (Section 2:28(1) Ptk.):

• The court places a person under guardianship in contentious proceedings
• May be requested by: the spouse, cohabitant, lineal relative, sibling, the guardianship authority, or the public prosecutor

Obligations of the Court

• Personal hearing – the court must personally hear the affected person (Section 2:29(1) Ptk.)
• Appointment of a forensic psychiatric expert is mandatory
• The court may restrict legal capacity only to the extent necessary – principle of maximum self-determination
• The judgment must specify the date of mandatory review (Section 2:29(3) Ptk.)

The Person of the Guardian

The court primarily appoints a guardian from among relatives (Section 2:31 Ptk.). Where no relative is available or suitable, the guardianship authority appoints a professional guardian. The guardian must act in the interest of the person under guardianship.

Mandatory Periodic Review

Section 2:29(3) Ptk. – Prohibition of “Perpetual” Guardianship

The court specifies in its guardianship judgment the date of mandatory review, which may not exceed five years from the date the judgment becomes final. This means:

• There is no indefinite guardianship – the court must regularly examine whether maintaining the guardianship is justified
• During review, the court examines whether the person’s condition has improved, and if so:
  • Terminates the guardianship
  • Mitigates the limitation (from full to partial, or from partial to supported decision-making)
  • Maintains the guardianship if still justified – but sets a new review deadline
• Review may also be initiated at any time by the person under guardianship, the guardian, the guardianship authority, or the public prosecutor (Section 2:34 Ptk.)

Review of Supported Decision-Making

The review, modification, and termination of supported decision-making is governed by Section 2:40 Ptk.. The supported person themselves may also request termination of the support.

Advance Directives (Sections 2:41–2:44 Ptk.)

The Civil Code enables a person with full legal capacity to provide in writing, in advance – before any potential future decline in legal capacity – regarding:

• Who should be appointed as their guardian or supporter
• Who should be excluded from the role of guardian or supporter
• How their affairs should be managed in the event of limitation of their legal capacity

The advance directive must be made in the form of a notarial deed or a private document countersigned by an attorney (Section 2:41(2) Ptk.). This institution is an extension of self-determination – the person provides for their own future protection.

Practical Protection

Elderly Persons

Supported decision-making is particularly important for elderly persons:

• It preserves independence and human dignity
• The supporter assists with complex administrative matters (banking, contracts, healthcare decisions)
• It does not deprive the person of the right to dispose of their assets – unlike guardianship

Safeguards Against Abuse

The guardianship and supported decision-making system contains safeguards against abuse:

• The guardianship authority supervises the activities of guardians and supporters
• The guardian has an accounting obligation regarding the property of the person under guardianship (Section 2:35 Ptk.)
• The court and the guardianship authority may remove a guardian who does not act in the interest of the person under guardianship
• The affected person may request judicial review of their situation at any time

When Is Guardianship Still Necessary?

Supported decision-making is not suitable for every situation. Guardianship is justified where:

• The person’s capacity for judgment is substantially or entirely diminished
• Protection of proprietary and personal interests requires active representation (e.g., urgent property transactions, banking matters)
• Within the framework of supported decision-making, the person is unable to make informed decisions

Practical Advice

1. Advance directive – if a decline in legal capacity may be anticipated, it is advisable to make a notarial deed in time, while at full legal capacity, designating the person of the guardian or supporter
2. Requesting supported decision-making – where the capacity for judgment has declined to a minor degree, supported decision-making ensures independent decision-making with the supporter’s assistance
3. Regular review of guardianship – if a relative is under guardianship, review may be initiated at any time under Section 2:34 Ptk.
4. Contacting the guardianship authority – if the guardian is not acting in the interest of the person under guardianship, a report may be filed with the guardianship authority

Supported decision-making is one of the most important modern legal institutions in Hungarian law – an alternative to the severe intervention of guardianship that preserves the human dignity and right to self-determination of the affected person. The three-tier system ensures that the degree of state intervention is always proportionate to the actual need. The guarantee of mandatory review prevents anyone from remaining under restriction unnecessarily or for a disproportionately long period.