Ukraine wants to introduce a mechanism of priority guardianship: what you need to know

Who will take care of the child if something happens to the parents? This question has become especially painful during the full-scale war, when thousands of Ukrainian children were left without parental care. The new draft law №13215, registered in the Verkhovna Rada, is intended to answer it. It proposes to introduce the institution of priority right - a mechanism that will allow parents or other persons to determine in advance who they trust with the future guardianship of a child or a disabled relative. 

UNN figured out what the draft law provides for, how the new mechanism will work and what to expect after its adoption.

Definition of the institution of priority right

As the lawyer for family and inheritance matters, mediator Khrystyna Laba, explained to the UNN journalist, in the conditions of war, Ukrainian families face serious challenges every day. Tragic events can lead to a child suddenly losing their parents or being left without proper care. And that is why the state must provide an effective mechanism that will allow parents to take care of their child's future in advance.

The introduction of the institution of priority right to guardianship and care is an important and timely step in this. It will give parents the opportunity to independently determine in advance the persons they trust the most, and who, in their opinion, will be able to best take care of the child in the event of their death or loss of legal capacity.

"As a lawyer in the field of family and inheritance law, as well as a mediator, I am convinced that this innovation is not just a formality, but a real mechanism for protecting the child. It will allow parents to take care of the future of their children in advance and provide them with support in the most difficult moments of life," the expert added.

So, the main innovations are:

• introduction of the institution of order on ensuring guardianship and custody regarding the priority right to be appointed as guardians, custodians;

• establishment of the procedure for drawing up, certifying and registering such orders;

• determination of the mechanism for taking into account the will of parents when appointing guardians and custodians;

• expansion of the functionality of the Inheritance Register and the Unified Information System of the Social Sphere for registration of orders on ensuring guardianship and custody;

• establishing the specifics of the appointment of guardians and custodians, taking into account previously drawn up orders;

• introduction of a mechanism for temporary placement of children with persons specified in the order, until the final resolution of the issue of guardianship or custody.

As the lawyer explains, the institution of priority right will help protect the rights of the child, and will also improve family and civil legislation regarding the issue of guardianship and custody. Legislative consolidation of this mechanism will avoid conflicts, delays in the process of appointing guardians and significantly strengthen the social protection of children in crisis situations.

In a commentary to UNN, lawyer Oleksandr Oleinikov emphasized that this legislative innovation is necessary, but it should have been introduced back in 2014.

Especially in view of the military aggression of Russia and the growing number of children who may lose parental care. In addition, the law allows parents to avoid the state or judicial "lottery" as to who will get the right to care for the child

Purpose of implementation

The main goal of this innovation is to protect the interests of children and persons who need care, in case of unforeseen life circumstances, especially in war conditions

In particular, according to Oleinikov, the draft law provides an opportunity: 

• to record the will of parents or guardians regarding the future care of the child; 

• simplify and speed up the procedures for appointing guardianship, avoiding delays and bureaucracy in state bodies; 

• harmonize Ukrainian legislation with international standards, in particular the models of the USA, Great Britain, Australia, Germany and Israel, in which this institution has been introduced; 

• create additional guarantees for children of military personnel who may die or become incapacitated as a result of performing their duty to the state.

Criteria for granting priority right

According to the draft law card, adults with legal capacity have the right to determine who should be their guardian or custodian in case of loss of their legal capacity. This is done through a special order to ensure guardianship and custody, which must be notarized and registered in the Inheritance Register. In addition, it is also possible to additionally determine persons who cannot be appointed as guardians, custodians.

If we talk about minors, then potential guardians in the order will be indicated by parents or adoptive parents. And they can also determine persons who cannot be appointed as guardians, custodians of their children.

Parents will have the right to indicate those who, in their opinion, should not be appointed as a guardian or custodian. This is especially true, because the law traditionally gives preference to relatives, but family relationships can be conflicting or undesirable

Guardians or custodians are also entitled to determine who can continue to perform these functions in the event of their loss of legal capacity or death. If there are several guardians, they must draw up the order jointly.

The order may name one or more persons - in a clear sequence, who has priority. The document is a personal and unilateral transaction, that is, each person draws it up independently.

In addition, this order:

• can be changed or canceled at any time;

• becomes invalid in case of submission of a new one;

• must be notarized;

• is subject to registration in the Inheritance Register according to the procedure to be approved by the Cabinet of Ministers. Implementation procedure.

As noted, in order to implement the institution of priority right, the state must adapt its digital infrastructure. In particular, it concerns the finalization of the Unified Information System of the Social Sphere and the Inheritance Register, in which all notarized orders regarding future guardians and custodians will be recorded.

In addition, the implementation of the draft law will require additional expenses from the state budget, which will include:

• development of new modules for registration of orders; technical support for expanding functionality.

The exact amount of funding will be determined after the technical task is created. However, the explanatory note emphasizes that updating the registers is an integral condition for launching the mechanism in full.

As Oleinikov explained, the draft law is quite progressive, but its implementation requires clear rules, as the following risks are possible:

• a formal approach to giving preference to a person only on the basis of a priority order without proper verification of their ability to perform the functions of a guardian;

• insufficient public awareness: the risk that the institution will remain unrealized due to low awareness;

• priorities are not clearly defined enough in cases of conflict of several orders, especially when they are drawn up by different persons (for example, parents and guardians).

Expected results

If the draft law is adopted, a comprehensive positive impact on a number of spheres of public life is expected. First of all, on the protection of the rights of children and people in need of care.

The adoption of the law will be of particular importance in the conditions of martial law, creating additional guarantees for the protection of the rights of children of military personnel and other persons participating in the protection of the state

However, according to Oleinikov, the priority right may become the subject of abuse, for example, under pressure from relatives.

In particular, it concerns psychological or moral pressure on a person during the drafting of an order - for example, from relatives who pursue their own, sometimes financial, interests. Drawing up orders "in case" only formally, without a proper understanding of the legal, moral and other consequences. Conflicts between the persons specified in the order - especially if several persons are indicated there in order of priority.

However, according to the lawyer, the law provides for significant safeguards:

• mandatory verification of the compliance of candidates with the requirements of the legislation (Family and Civil Code of Ukraine); 

• the possibility for the court to deviate from the priority right if it does not meet the best interests of the child; 

• the requirement to register the order in the state register, which ensures proper control. 

The introduction of the institution of priority right to guardianship is an important step towards strengthening social protection of children and vulnerable groups of the population. This draft law allows parents and guardians to determine in advance the circle of persons who will have the preferential right to care for the child in the event of their death or loss of legal capacity. This ensures stability, predictability and security for the child during the war