Legal Correspondent Christos Kiosses specializes in assisting Greek-Americans with legal issues in Greece. Here he discusses judicial guardianship when caring for a loved one living in Greece.
Role reversal: caring for a loved one
In our lives, we take many things for granted. We rely on comfortable settings and situations, thinking that they won’t ever change. We believe our loving mother will always take care of us and will always be there to listen, give advice, and comfort us. That our caring father will always support us, be the voice of reason, and cherish us as his little princess or prince.
As time passes, the time will come when these roles become reversed and we must assume the role of the caregiver. There is a process within the Greek legal system that can help, called Interdiction. This is when a court of law appoints a guardian to care for an adult who is no longer able to manage their personal affairs.
This is no easy task. For those with parents and grandparents living in Greece, this can be even more complicated. Let’s look closer at the concept of Judicial Guardianship, and caring for a loved one in Greece.
Judicial Guardianship, also known as adult guardianship, is beneficial to any adult person who is either physically or mentally incapable of managing their own lives and affairs on a permanent basis. It’s up to the court to determine whether the physical or mental impediment is grave enough to warrant an Interdiction, in order to protect their safety and well-being. Know that each case is carefully and thoroughly scrutinized. The judge will often consult with expert physicians, psychologists, psychiatrists, neurologists, or other competent medical personnel to determine the necessity of placing an individual under Judicial Guardianship.
There is another instance in which an adult may be placed under Judicial Guardianship. According to Greek Civil Code, this may occur when a person is deemed “prodigal”. A prodigal is defined as a substance abuser, alcoholic, or person suffering a mental illness (examples from case law studies include schizophrenia, dementia, manic depression, etc.), who as a result, becomes a threat to their spouse, their children, their parents, or even themselves.
Note, it doesn’t matter whether the condition is permanent, or curable, or treatable. What is important is to help the person with their personal affairs and their overall well-being.
Two other instances are described in the same statute:
a) An incarcerated person may be put under auxiliary court-ordered guardianship, if their sentence is longer than two years.
b) A minor who might fall under one or more the above-mentioned prerequisites and is about to become of age can be put under Interdiction. The court decision takes effect as the minor comes of age.
Who can file a Motion for Interdiction
The law is very strict on who may file. A court will hear an Interdiction case after a motion by:
1) Person voluntarily requesting a court-ordered guardianship: If the person is only suffering from a physical impediment, no one may file on their behalf.
2) Spouse of an incapable person, their parent, their child, the district attorney, or the judge of the court.
3) Guardian of a minor who is about to become an adult.
4) An incarcerated person.
Appointing a guardian
Being a guardian is a very important task. This person must be sensitive to the needs of the incapable person, as well as trustworthy and responsible. The court’s goal is always to protect the incapable person’s best interest. If they’re able to express their will, the person to be put under Judicial Guardianship gets to pick their guardian. If they are incapable, or if the person chosen to be guardian is deemed unfit for the position, the court is free to appoint anyone who is willing, able, and fit for the position. Furthermore, the court may ban any person who might have a conflict of interest with the incapable person, so they may not interfere with the the incapable person’s affairs.
The guardian must be of sound mind and capable of performing the duties assigned to her/him. If there is no such person in the immediate family of the incapable person, then the state will appoint a person from the relevant social services.
The court will decide whether the incapable person may perform any acts of legal significance. If the person is declared absolutely incapable, then the guardian must overtake completely and perform all necessary legal acts on behalf of the incapable person. If the person is deemed partially incapable, then this person’s actions will only be valid if the guardian approves and co-signs. Of course, the court is free to combine the two options and decide what’s best in each individual case.
Acts of legal significance include:
- purchasing or selling property
- donating or accepting donated property
- paying or receiving payments and issuing receipts
- signing legal documents
- participating in any oral contracts
- assuming any kind of legal obligations
The incapable person is allowed to freely perform social activities of little or no legal significance without the guardian’s permission, providing none of those activities create legal obligations. These actions include things like:
- attending social gatherings
- sending out greeting cards
- friending on un-friending others
When the court makes its decision, there will be a time limit for appeals. If there are no appeals and the period expires, the relevant court decision is published and the Interdiction takes effect immediately. The guardian then assumes her/his duties. In the interim, a court-appointed temporary guardian performs the duties of the permanent one.
Applying for Judicial Guardianship
The first step is to engage a competent attorney with experience in this area. The attorney will assess the situation, and then file the appropriate documents with the Single Member Court of First Instance.
Respect for our loved one
Over the years, I have handled numerous sensitive cases of this nature. Many times the loved one was not capable of understanding that this was in their best interest. This can make things difficult. Consequently, I always advise family members to be understanding and patient, comforting and kind. This makes the whole process smoother and easier on everyone involved.
Remember, the cornerstone in the procedure of placing someone under Judicial Guardianship is the protection of that person’s dignity. All the people involved — relatives, doctor, judge, district attorney, and attorney(s) — should always remember that this human being is an individual, who deserves respect, attention, protection, love, and the best care possible.
Other articles by Christos Kiosses:
He is a Foreign Legal Consultant within the Law Offices of George C. Xamplas, serving the needs of Greeks living in the larger Chicago area and beyond with any legal issues they might have in Greece.
Prior to moving to the US, Christos practiced law for 20 years in Greece. A member of the Thessaloniki Bar Association since 1996, he has extensive experience in litigation, counseling, legal practice and negotiations. He is licensed to practice in Illinois, in Greece, and the European Union.
He specializes in the fields of Real Estate Law, Inheritance and Tax Law, Commercial and Civil Law, as well as Intellectual Property Law and Family Law. He also has experience litigating a variety of commercial and business-related claims and liability matters.
Christos has handled successfully a wide variety of cornerstone cases, creating in the process legal precedent in the Greek Legal System. Some examples include: battling fraudulent companies in a nationwide time-sharing scheme scandal, saving countless individuals in the process; achieving a landmark case against the Hellenic Mapping and Cadastral Organization, paving the way for hundreds of homeowners to reclaim their properties.
He is also an accredited US and EU civil and commercial mediator. In that capacity, he was involved in numerous successful courtside mediations.
Christos blogs on legal topics of interest to Greek Americans, at kiossesblog.com, and discusses these topics on a weekly radio show, The Chicago Greek Hours with Sotiris Rekoumis, which airs on Thursdays at 9:00 am (CST).
Latest posts by Christos Kiosses (see all)
- Greek-American Legal Topics: Judicial Guardianship - August 24, 2016
- Greek-American Legal Topics: Getting a Greek Divorce - June 20, 2016
- Greek-American Legal Topics: Greek Citizenship - May 12, 2016