Guardianship reform in practice – the influence of the Civil Code of 2013 on the guardianship system

During the codification of the Civil Code, fierce debates have arisen from changes related to the rules governing the legal capacity of persons with disabilities. The Civil Code of 2009 was significantly different from both the then effective regulation and the Expert Recommendation edited by Lajos Vékás (Vékás, 2008): for example, it abolished guardianship, allowed substituted decision making only for a limited time and introduced the institution of supported decision making and living will. This has led to sharp criticism by civil law professors, with some consideration that the draft was taken to be inapplicable (Vékás, 2008) or even out of debate (Jobbágyi, 2009). Nevertheless, it emerged from the debate that the draft sought solutions to real problems: there are indeed serious failures in the practical application of the guardianship system (Kőrös, 2009). In response to these concerns, the new Civil Code, adopted in 2013, partially reproduces the provisions of the 2009 Civil Code. It contains certain elements, such as the supported decision making and the living will, albeit not in the same broad way as the 2009 Civil Code. It also changed the guardianship rules (Act V of 2013 on the Civil Code). Goal of this paper is the evaluation of the legal capacity regulation of the new Civil Code. Within the narrow framework of the study, I will examine three aspects of the 2013 Civil Code. Firstly, the practical effect of the legal capacity rules of the Code; secondly, the provisions have been drawn up in compliance with the changing international legal environment; thirdly, the theoretical validity of its legal capacity rules. Finally, I propose research, legislative and enforcement actions to further develop the regulation of legal capacity.