Article 2.5.8 Legal Capacity and Protection of Vulnerable Persons

(a) Purpose and Scope:

This Article provides a structured framework for assessing and protecting the legal capacity of persons in relation to marriage, parental responsibility, financial decision-making, and other family law matters. It safeguards the autonomy and rights of persons with diminished capacity while ensuring appropriate oversight and support.

(b) Determination of Capacity:

(i) A person shall have sufficient mental competence, maturity, and freedom from coercion to:

(i) Enter into marriage or a domestic relationship;

(ii) Exercise parental rights;

(iii) Appoint an attorney or guardian;

(iv) Make personal, financial, or medical decisions with legal effect.

(ii) Capacity shall be assessed functionally, based on the ability to understand, weigh, and communicate decisions in the relevant context.

(iii) Capacity shall be presumed unless rebutted by clear evidence to the contrary.

(c) Protective Arrangements:

(i) Where a person lacks legal capacity, the ICT Court may appoint:

(ii) A guardian to make decisions on their behalf;

(iii) A personal representative for specific tasks;

(iv) A supported decision-making assistant, where appropriate.

(v) All decisions made on behalf of a vulnerable person shall reflect their will and preferences, where ascertainable, and shall be the least restrictive alternative consistent with their welfare.

(d) Powers of Attorney and Advance Directives:

(i) The ICT recognises enduring powers of attorney, including for financial, medical, and personal matters.

(ii) Living wills or advance healthcare directives may be given legal effect where:

(iii) Executed while the person had capacity;

(iv) Clear and unambiguous in their terms;

(v) Not contrary to ICT public policy or fundamental rights.

(vi) The ICT Court may revoke a power of attorney where abuse, coercion, or incapacity is proven.

(e) Data Protection and Confidentiality:

Records of capacity assessments, guardianship, or attorney appointments shall be kept confidential and accessible only to authorised parties, subject to safeguards under the ICT Code and its data protection provisions.

(f) Rights of Review and Appeal:

(i) Any person subject to a guardianship, capacity determination, or related order shall have the right to request a review or appeal at the ICT Court.

(ii) The ICT Court shall hear such appeals with due regard to international standards, the principle of autonomy, and the individual’s best interests.

(g) Recognition of Foreign Arrangements:

Powers of attorney, guardianship, or advance directives created under foreign law may be recognised within the ICT where:

(i) Executed in compliance with the applicable foreign legal framework;

(ii) Not contrary to ICT fundamental rights or public policy;

(iii) Registered with the ICT Civil Registry where required.