Commentary to article 26. Recognition of a citizen as legally incompetent by the Civil Code of the Republic of Kazakhstan
The mentally ill (mentally ill) are those citizens who, as a result of illness, have lost the ability to understand the meaning of their actions or to direct these actions. One of these signs is sufficient to recognize a person as mentally ill. In both cases, we can talk about a mental disorder of a citizen.
Recognition of a citizen as legally incompetent due to a mental disorder is carried out only by court in accordance with the rules of Articles 255-259 of the CPC at the request of members of his family and other persons specified in the CPC, in a special procedure. In these cases, it is mandatory to conduct a forensic psychiatric examination.
A court's recognition of a citizen as legally incompetent due to a mental disorder serves as the basis for establishing custody over him (see art. 120 of the Code of Civil Procedure of the Kazakh SSR).
On behalf of a citizen who has been declared legally incompetent due to a mental disorder, transactions are made by his guardian. Transactions that may significantly affect the interests of the ward require the prior consent of the guardianship authority. The list of such transactions is specified in art. 134 of the KBS.
A transaction made by a person declared legally incompetent due to mental illness or dementia is invalid (paragraph 5 of Article 159 of the Civil Code with the consequences provided for in paragraph 3 of Article 157 of the Civil Code).
In case of recovery or significant improvement of the incapacitated person's health, which has given him the opportunity to understand the significance of his actions and direct them, the court recognizes him as legally capable. The procedure for such recognition is defined by Art. 260 of the CPC. After the recognition of an incompetent person as legally capable, custody is removed from him.
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
