THE BULGARIAN CONCEPT OF SUPPORTED DECISION-MAKING

GUARDIANSHIP ACCORDING TO THE BULGARIAN LEGISLATION: CONCEPT, BACKGROUND, AND CASE LAW

The effective Bulgarian legislation and the case law of the Supreme Court of Cassation require that two criteria must be met to place a person under guardianship: (i) weak-mindedness or a mental health condition (medical criterion); (ii) incapacity (i.e., limited capacity) of the person to take care of their affairs (legal criterion); and that a causal link is established between the medical criterion and the legal one. Pursuant to the provisions regulating the legal status of individuals and the possibilities for the restriction thereof, guardianship, as regulated:

• – is imposed for an indefinite period of time;

• – covers all legal areas of an individual’s activity;

• – is effective in the future, and, in practice, it is difficult to revoke it in the context of the established case law where the precondition thereof is that the person under guardianship prove their recuperation with a medical document or protocol issued by a medical consultative committee;

• – does not take into consideration the dynamics of the individual‘s state, and does not recognise that their inability or difficulties in terms of taking care of their affairs may change over time and vary in respect of the legal spheres;

• – shall not be subject to periodic review;

• – the individuals under guardianship are deprived of any access to the court or redress for their fundamental rights and interests, the legal consequences from partial guardianship in the Bulgarian context being the same as the ones from full guardianship;

• – is entirely a form of substitute decision-making: the person under guardianship is assigned a substitute in all civil matters who makes decisions based in their “best interest”, as understood by third parties (where the person under guardianship is turned into an “object” who is fully subordinated to their guardian and does not have any mechanism available to ensure respect for their wishes and preferences).