Macedonia
Vulnerable persons in Macedonia
Adults
1 - Does your legal system provide for lasting powers of attorney for persons who wish to nominate someone close to them as their guardian in case of loss of legal capacity owing to an accident or illness?
LLasting Power of Attorney is a new provision created by the Mental Capacity Act 2005. It is the legal document which states that a third party is able to have control over affairs, including decisions about finances, care and welfare, once the person lacks the capacity. - No such legal mechanism exists in our country.
The procedure on full or partial dispossession of legal capacity is initiated by the court ex officio or at a motion of the spouse, child, grandchild, parent, grandparent, sibling and any other person with whom the person lives in permanent union, and at the motion of the competent welfare centre. The motion should list the facts from where it derives that there are conditions for the dispossession of the legal capacity of the person concerned and the proof certifying the facts. The welfare centre is notified of the initiation of a procedure for the dispossession of legal capacity if the procedure has not been initiated at their motion. In urgent and justified cases, the court may appoint an interim representative to the person subject to the procedure throughout its course.
If not:
- Why does your legal system not provide for lasting powers of attorney (e.g. public policy)?
Our legal system does not stipulate such an institute because the legislator deemed that these persons are already sufficiently protected in such a way that if a person loses fully or partially their legal capacity, then the competent authority will appoint them a custodian who will fully take care of the interests of the person having lost their legal capacity and will thus protect the rights of that person either ex officio or at the motion of the spouse, child, grandchild, parent, grandparent, sibling and any person with whom the affected person lives in a permanent union, as well as on the motion of the competent welfare centre.
- Can the aim of a lasting power of attorney be achieved, even partially, by other legal means?
Yes.
The legal means used in our legislation to protect the rights and interests of a person who cannot take case of oneself and one's rights is ensured through the procedure for full or partial dispossession of the legal capacity initiated by the court ex officio or at the motion of the spouse, child, grandchild, grandparent, sibling or any other person with whom the affected person lives in a permanent union, as well as at the motion of the competent social works centre.
If yes:
a) What is covered by the lasting power of attorney (administration of assets, custody rights, etc.)?
b) Who may be appointed as legal representatives?
c) Must all representatives be approved, for example by a court?
d) May authorised representatives delegate authority to third parties?
e) Under what conditions may lasting powers of attorney replace official guardianship?
f) Do powers of attorney have any legal effects before the loss of capacity occurs? Do they have effects after death?
g) In what form must the power of attorney be drawn up?
h) Must/can lasting powers of attorney be recorded in a register?
2 - Does your legal system provide for an advance decision on medical treatment for persons who, as a result of an accident or illness, are no longer able to express their wishes with regard to undergoing or refusing medical treatment?
No decision on medical treatment can be issued in advance for persons who are no longer able to express their will as a result of an accident or illness.
If the patient is capable of making the decision themselves, then the right of the patient to participate in the decision-making covers the right to information and the right to accept or refuse a certain medical intervention.
The right of the patient to the partaking in the decision-making may be limited as an exception only when it is justified by the health condition of the patient, in cases and in a manner regulated by the Law on the Protection of the Patients' Rights.
The right to information is also enjoyed by patients with permanent decrease of their reasoning capacity in line with their physical condition and sanity, as well as their legal custodians or representatives. The patient has the right to accept or refuse a certain medical intervention except in cases of medical interventions whose delay or non-taking would jeopardize the life and health of the patient or the life or health of other people or would cause temporary or permanent damage to their health or to the health of other persons. With regards to unconscious patients, patients who have been interned without their consent, legally incompetent or underage patients, except in cases of urgent medical intervention, the written statement on the acceptance or refusal of a certain medical intervention is signed by their parent, legal representative or custodian.
If not:
- Why does your legal system not provide for advance decisions (e.g. public policy)?
Our legal system does not stipulate the issuance of an advance decision on the medical treatment method because if it should come ti such an event, the immediate family members, the legal representative shall decide on the medical treatment method and type, and if necessary, the person who has lost their legal capacity may be also appointed a custodian who will take care of their rights. - Can the aim of an advance decision be achieved, even partially, by other legal means?
Yes, as already stated, the immediate family members, the legal representative shall decide on the medical treatment method and type, and if necessary, the person who has lost their legal capacity may be also appointed a custodian who will take care of their rights
If yes:
a) What is covered by the advance decision?
b) Must the advance decision be officially approved, if appropriate?
c) Is the advance decision binding on medical staff and the patient's representatives?
d) In what form must the advance decision be drawn up?
e) Must/can advance decisions be recorded in a register?
f) Do regulations exist to resolve any conflict between an advance decision and a wish for organs to be donated expressed by the patient in another form (such as an organ donor card)?
3 - Does your legal system provide for the right to request that a trusted person be named as guardian in case of future incapacity?
No. The procedure of appointing a custodian in case of future incompetence is not foreseen in the Macedonian legislation.
If not:
- Why does your legal system not provide for notarised powers of attorney (e.g. public policy)?
The legislator has not provided for such an institute because they believed the matter sufficiently regulated and the citizens' interests sufficiently protected through the existing legal regulations.
If yes:
a) Is the request for a trusted guardian binding on the court/authority?
b) Does such a request require official approval?
c) Who may be appointed as guardian? May more than one person be named as legal guardian?
d) May more than one person be named responsible for the administration of assets and handling custody rights?
e) In what form must the request be drawn up?
f) Must/can such requests be recorded in a register?
4 - Which authority has international, territorial and material jurisdiction to appoint legal guardians?
The authorities participating in the determination and appointment of custodians and interim representatives are the Court and the Social Works Centre.
In urgent and justified cases the court may appoint an interim representative to the person against whom a procedure for partial of full dispossession of their legal capacity is instituted in the course thereof. The court forthwith notifies the welfare centre of the appointment of an interim representative. When conducting inheritance procedures, the heir may be appointed an interim custodian if their domicile or habitual residence is unknown and they do not have a proxy of their own and when the heir or their legal representative are abroad failing to have their own proxy, rendering the service impossible. The jurisdiction of the welfare centre is determined according to the domicile. Failing to have a domicile, the jurisdiction shall be determined on the basis of the habitual residence of the person requiring custodianship. The jurisdiction of the welfare centre is determined according to the domicile. Failing to have a domicile, the jurisdiction shall be determined on the basis of the habitual residence of the person requiring custodianship.
5 - Is it usual practice to appoint several guardians, to deal with different matters (custody rights, administration of assets, etc.)?
Macedonian Law regulates that only one custodian can be appointed to deal with The same person may be also appointed as custodian to numerous persons if they consent thereto and if that is not contrary to the interests of the persons placed under custodianship and if they consent thereto.
6 - To what formal and material restrictions are legal guardians subject? Specifically, must they be officially approved? Must they have authorization from a court or authority to carry out certain legal acts?
Yes. In accordance to the Law on the General Administrative Procedure, the welfare centre decides on the appointment or dismissal of a custodian, the scope of their authority and the rights and legal interests of the person under custodianship, as well as of the termination of the custodianship. The welfare centre determines in the decision appointing the custodian their duties and the scope of their authority. Prior to issuing the decision, the welfare centre informs the custodian of the meaning of the custodianship, their rights and duties and the other major details required to perform the duty of a custodian. The welfare centre issues the custodian a custodian certificate covering the scope of their authority. Within his/her authority, the custodian is obliged to take due care of the person under custodianship and their rights and interests and duly manage their property. The custodian may not take actions without prior approval from the welfare centre that extend beyond their regular operating powers or the powers with regards to the handling of the guarded person. The custodian may not present gifts or otherwise dispose the property of the guarded person without an indemnity and may not use the person under custodianship as a collateral. The welfare centre will appoint a custodian for certain things or activities to a person whose domicile is unknown and who doesn't have a legal representative, to an unknown property owner when someone needs to take due care of the property and in other cases when it is required to protect the rights and interests of certain persons. A custodian in the latter situation may be also appointed by the authority before which the procedure is conducted, as regulated by law. This authority is obliged to duly inform the welfare centre thereof.
7 - Under the conflict-of-law rules in force, what substantive law is applicable to:
- lasting powers of attorney?
No such legal mechanism exists in our legislation. - advance decisions to refuse treatment?
No such mechanism exists in our legislation. - requests made with regard to the guardian and/or circumstances of a guardianship?
The Law on the Protection of Patients' Rights regulates that with regards to unconscious patients, patients who have been interned without their consent, legally incompetent or underage patients, except in cases of urgent medical intervention, the statement referred to in Article 14 of this Law (referring to the method and type of medical treatment or operation) is signed by their parent, legal representative or custodian. In the interest of the patient, the person who has given the statement may withdraw it up to the commencement of the intervention in the same way as it was given. In case of conflicting interests of the patient and their parent, legal representative, custodian, the health facility is obliged to immediately inform the competent welfare centre that decides according to the urgency principle. If no consent can be obtained from the parent, legal representative or appointed custodian due to the urgency of the situation, the patient will be subjected to a medical intervention only if the failure to undertake one would directly put their life in danger, or the life of other persons or would put into serious and direct danger their health or the health of other persons. The intervention may be conducted without a statement of consent of the parent, legal representative or custodian of the patient only as long as the immediate danger subsists.
- Has your Member state signed the Hague Convention of 13 January 2000 on the International Protection of Adults?
- Under what condition are the following foreign documents recognised in your Member State?
a) lasting powers of attorney?
b) advance decisions to refuse treatment?
c) notarised powers of attorney?
Minors
1 - Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?
No, the Republic of Macedonia is not party to this convention.
- Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?
- Which authority has international and territorial jurisdiction concerning questions of custody?
- Which authority has international and territorial jurisdiction concerning questions of representation?
*The Law on Family regulates these issues.
Parenthood rights consist of the parents' rights and duties to take care of the person, rights and interests of their underage children and the children over whom parenthood rights have been extended.
The parents have the right and duty to represent their underage children. The child has the right to be represented by their parents or custodians.
*The Social Works Centre is an institution competent to regulate issues of custodianship and protection of the rights and interests of the underage children.
2 - Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?
3 - Who has the general right of custody of a minor?
3.1 What is the scope of the right of custody?
3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?
3.2.1 On who’s proposal and when the decision on appointment of custody is made?
3.2.2 Is the competent authority free in its choice of a new custodian?
3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?
3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?
3.4 May the right of custody be transferred to another person by means of a power of attorney?
3.4.1 Is the consent of all custodians to the transfer mandatory?
3.4.2 Are there any restrictions to this type of power of attorney (for example the right of custody may not be transferred in its entirety?
3.4.3 What are the formal requirements for this type of power of attorney?
The parents have the right and duty to maintain their underage children, take care of their life and health, prepare them for independent life and work, take care of their upbringing, education and professional development.
The custodian of a minor is obliged to take care as a parent for the personality of the minor, especially their health, upbringing, education and train them for independent life and work.
The procedure for placement under custodianship is initiated ex officio or at the motion of the stakeholders. The procedure is urgent. The following persons are obliged to inform the authority of the need for a person to be placed under custodianship or apply a certain form of protection as provided by the social works centre: 1) the register and state authorities who learn of such a case throughout the performance of affairs under their competence; 2) relatives, family members and neighbours, and 3) enterprises, institutions, local communities and other organizations and communities.
When the social welfare centre learns of the need to place under custodianship a certain person, they immediately take the appropriate measures to protect the person, rights and interests of that person and initiate a procedure for the placement of custodianship. When determining the form of protection over the person to be placed under custodianship, the social welfare centre will be primarily guided by the interests of the person put under custodianship and their family's interests, as well as by the material circumstances, wherein the centre cooperates with relevant organizations and authorities.
The welfare centre decides on the placement under custodianship, on the appointment or dismissal of a custodian, the scope of their authority and the rights and legal interests of the person under custodianship, as well as of the termination of the custodianship. The custodian placed shall be a person who has personal characteristics and capacities to perform the duty if custodianship and who shall provide their prior consent to be custodian. A custodian shall be primarily a close relative of the guarded person. When a custodian is appointed, the welfare centre takes into consideration the wishes of the guarded person if they are able to express them, as well as the wishes of their next of kin. The same person may be also appointed as custodian to numerous persons if they consent thereto and if that is not contrary to the interests of the persons placed under custodianship and if they consent thereto. According to the valid legal regulations in our legislation, there is no difference between children born in or out of wedlock and they all enjoy the same rights.
Custodianship cannot be transferred to another person through a proxy.
4 - Who has the general right of legal representation of a minor?
4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?
4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?
4.1.2 Is the competent authority free in its choice of a new legal representative
4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?
4.2 Are there any restrictions / extensions for the legal representative(s)?
4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?
4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?
4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?
4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).
4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?
4.2.4 Other restrictions for legal representatives:
4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?
4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.
4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?
4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?
4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?
4.4 May the right of representation be transferred to another person by means of a power of attorney?
4.4.1 Is the consent of all legal representatives to the transfer mandatory?
4.4.2 Are there any restrictions to this type of power of attorney (e.g. the right of representation may not be transferred in its entirety or is cannot be transferred in regard to certain transactions)?
4.4.3 What are the formal requirements for this type of power of attorney?
According to the Law on Family, the parents have the right and duty to represent their underage children. The child has the right to be represented by their parents or custodians.
The welfare centre appoints a custodian to an underage child if their parents have passed away of lost their legal capacity.
The procedure for placement under custodianship is initiated ex officio or at the motion of the stakeholders.
When a custodian is appointed, the welfare centre is free to decide which person they will appoint custodian because they take into consideration the wishes of the guarded person if they are able to express them, as well as the wishes of their next of kin.
The custodian placed shall be a person who has personal characteristics and capacities to perform the duty if custodianship and who shall provide their prior consent to be custodian.
Our legislation does not provide for the possibility of placing multiple custodians to the same person.
The welfare centre decides on the scope of authority of the custodian and the welfare centre is the only authority able to issue consent and approval for the taking of certain measures towards the custodian regarding the guarded person, especially if it comes to actions which are putting a burden on the guarded person, their interests or property.
If the parents divorce, the court decides, after having collected the opinion of the Welfare Centre, which parent shall be entrusted with the guard and upbringing of the child.
If an underage person needs to sell property, the parent/custodian must first get a special approval/permit from the Welfare centre for the sale of the concerned property and solely if the funds from the sale of the concerned property are indispensable to the underage child (e.g. their education).
The welfare centre also takes into account the wishes of the guarded person, the custodianship is initiated ex officio or at the motion of the stakeholders.
5 - How can the custodian / representative prove his/her right?
5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?
5.2 Is there any other kind of document, that proves the right of custody and/or representation?
The parents with a birth certificate of the underage child, the legal representative by a decision issued by a competent court, and the custodian through a decision from the Welfare Centre.
The welfare centre determines in the decision appointing the custodian their duties and the scope of their authority. The welfare centre issues the custodian a custodian certificate covering the scope of their authority.
6 - According to the national law, who is responsible for giving consent/permission/authorization for a minor child to travel abroad, in the event both parents are not travelling with the child(e.g. one parent, both parents, the guardian, institution, please specify)?
- What are the requirements for the formal validity of such a consent/permission/authorisation?
If the person aged up to 14 (underage) travels abroad or returns from abroad accompanied by a parent or custodian, no approval is necessary for their trip. If the person aged up to 14 (underage) travels abroad or returns from abroad not accompanied by a parent or custodian, an approval is necessary for their trip.
The approval is issued on the basis of the written consent from the parents or custodian given at the competent internal affairs units-departments or before a notary.