The role of the judge in disputes regarding the taking of special guardianship or judicial advice over an adult natural person

Abstract

In this study, we will analyze the essential role that the national judge plays in solving the civil case regarding the taking of the measure of special guardianship or judicial counseling for an adult individual. Thus, we will highlight some of the „traps” that could hinder the discovery of the truth in the case. On the one hand, we will refer to the medical evidence, which must be viewed critically by the judge, who is not obliged to automatically adopt the conclusions of the expert reports. And, on the other hand, we will highlight the risks of non-involvement or superficial involvement of the person with mental disabilities in the conduct of the civil trial. The judge bears responsibility for the final decision with an impact on the civil legal capacity of the adult assessed, which is why he cannot delegate to the doctor or psychologist the competence to apply a certain protection measure, by appropriating the conclusions formulated, nor the formal hearing of the patient during the trial. Throughout the paper, jurisprudential references will be found in support of the proposed solutions.