THE GUARDIANSHIP IN THE REPUBLIC OF NORTH MACEDONIA. NECESSITY TO TRANSIT FROM SUBSTITUTE DECISION-MAKING FOR THE WARD TO SUPPORTIVE DECISION-MAKING WITH THE WARD

Abstract

The author tackles the topic on guardianship in the intersection between family law and human rights that is very important yet neglected in the Macedonian legal theory and jurisprudence. Namely, the Republic of North Macedonia has ratified the Convention on Rights of Persons with Disabilities and has obligations to align its legal system (primarily its Family Law and Law on Non-contentious Procedure, but also other laws) with its spirit. However, it seems as if mental capacity is associated (or at least closely related) with legal capacity and as a result, persons deprived of legal capacity are limited to enjoy and act upon many fundamental rights. The author concludes that the Macedonian legal system is still very paternalistic when it comes to the relationship between vulnerable adults and the persons responsible to protect their interests on their behalf, appointed by the State. Therefore, the principle of presupposed ‘best interests’ dominates over the ‘will and preferences’ principle. Accordingly, the system recognizes only substitute decision-making for the ward, instead of supportive decision-making with the ward. This should be changed as a matter of priority in the future.