5(A). How can I represent someone who has been deprived of legal capacity?

Many people with disabilities in institutions are under guardianship. In many European countries, deprivation of legal capacity and placement in institutions go hand in hand, with one facilitating the other. Relatives seek to have their family member deprived of their legal capacity in order to place them in an institution, and in some cases the motivation will be to gain control over their assets. Deprivation of legal capacity has practical implications in litigating the right to live in the community and other rights. People deprived of their legal capacity will have a guardian appointed to make decisions for them. In many cases, they will be under plenary guardianship where all of their legal standing and rights have been stripped from them. In cases where they are placed under partial guardianship and only some of their rights have been removed, the right to instruct legal counsel and/or the right to be represented in court are removed. This can mean that any power of attorney (the document on which a client instructs a lawyer to provide legal representation) is considered null and void and the lawyer will not be considered to be validly instructed. In these cases, lawyers should tread carefully.