Publication date: January 16, 2026
Prepared by Konrad Byrski, KIELTYKA GLADKOWSKI KG LEGAL
One of our lawyers, Konrad Byrski, had recently the opportunity to participate in the Legal and Psychological Congress, which aimed to exchange views, discuss and present interesting issues regarding the participation of expert psychologists and psychiatrists in various types of proceedings provided for in the Polish legal system and basic institutions that include an emphasis on psychological sciences.
The topic of his presentation was the institution of incapacitation, periods of momentary consciousness of a mentally ill person (the so-called “lucidum intervallum”) and their impact on the performance of legal acts, as well as the institution of total and partial incapacitation with a strong emphasis on the draft act on instruments of supported decision-making, which put the existence of these two institutions in uncertainty in the near future.
This article will explore the draft of this bill. It will discuss the reasons for these likely changes, the new regulations it provides, and its implications for individuals already subject to various forms of incapacitation.
INSTITUTION OF PARTIAL AND TOTAL INCAPACITION
These two legal structures are both regulated in the Civil Code[1] (hereinafter referred to as the Civil Code), or more precisely in Article 13 and Article 16. The adjudication of each of these measures is subject to certain conditions, such as the severity of a mental disorder, the mandatory issuance of an expert opinion (from a procedural point of view), the age of the person concerned, and, moreover, such action by the court must primarily take into account the well-being of the person concerned, because it is precisely for such people that such a regulation is intended to help[2].
Legal incapacitation is associated with a corresponding “degradation” of legal capacity, namely, complete incapacitation causes a person who has reached the age of 13 (who already has limited legal capacity due to the provisions of Article 15 of the Civil Code) to lose it altogether. The logic of the age requirement for applying complete incapacitation should also be noted. If it were possible to incapacitate a person who has reached the age of 13 to a limited extent, it would be contradictory. It is impossible to limit already limited legal capacity, so only full legal incapacitation remains. However, it is possible to partially limit the legal capacity of adults, because there is reason to limit it, provided the conditions of the relevant provisions are met.
THE PROPOSED ACT ON INSTRUMENTS FOR SUPPORTED DECISION-MAKING
One of the most important legal acts worth emphasizing at this point is the UN Convention on the Rights of People with Disabilities[3], to which the Republic of Poland is a party. The Act is inspired by the general principle of this convention, among others, namely the preservation of the dignity, subjectivity, and autonomy (including the freedom to make choices) of disabled persons, as well as respect for their independence (Article 3 of the Convention). This legal act also emphasizes the principle of equality before the law (Article 5, paragraph 1 of the Convention), which, in relation to the institution of legal incapacitation, may raise questions about the implementation of this principle in the Polish legal system. However, the most important provision of the Convention from this perspective seems to be Article 12, paragraph 1, which guarantees State action towards its citizens aimed at ensuring the realization of the right to recognition as legal subjects. This provision most strongly calls into question the legitimacy of the institution of legal incapacitation in light of this regulation. Furthermore, in the same article, paragraph Article 3 refers to ensuring that persons with disabilities have access to the support they may need when exercising their legal capacity, which clearly indicates the need to ensure its preservation in its unchanged form and provide only assistance in making decisions consistent with their best interests. It is also worth noting a certain inconsistency. Legal capacity and legal capacity are two different capacities that together constitute legal personality. The Polish translation of the Convention simply contains a translation error. In the original text, “legal capacity” includes, in addition to legal capacity, also the capacity to perform legal acts.
For the above reasons, it was deemed necessary to submit a draft bill on instruments for supported decision-making[4]. The draft bill is very short in terms of provisions introducing new institutions not yet known to the Polish legal system. According to Article 1 of the draft bill, its purpose is to enable adults to exercise their legal capacity in a manner consistent with their will, needs, and interests, while previously expressed views are also taken into account in the determination of which. This provision clearly references the aforementioned Convention and the values protected by it.
The bill provides for so-called instruments for supported decision-making, which include a legal assistant, a representative and supporting guardian, and a registered attorney. Furthermore, the Presidium of the Supreme Medical Council emphasizes the need to amend the draft bill by also providing for a medical attorney, who would assist a sick person in making decisions regarding the provision of specific healthcare services.
Section II of the draft law provides for a legal assistance agreement, which is a unilaterally binding legal act. It corresponds to the definition of a typical contractual relationship, based on the legal assistant as the debtor, and the person commissioning the assistance as the creditor, providing actual support in exercising their legal capacity. The contractual nature of such a legal relationship is emphasized by the appropriate application of the provisions on mandates provided for in the currently applicable provisions of the Civil Code (Article 3 of the draft), subject, of course, to the provisions of Section II. Such an agreement will be required to be in writing, under pain of nullity (Article 5). This refers to the importance of the matters entrusted to the “assistant’s care.” This form of agreement should be considered justified, as the assistant’s actions and their authority to perform them can have significant consequences for the commissioning party. The supporting person must be actively present during the commissioning party’s legal actions, explain the significance of the legal actions undertaken and the consequences of declarations of intent, gather and provide information relevant to the proper execution of the legal action, convey the supported person’s declarations of intent in their presence, and even have access to information covered by professional secrecy, unless otherwise stipulated in the contract (Article 3, paragraphs 2 and 4). Of course, the Act obliges the legal assistant to maintain the confidentiality of information learned in connection with the provision of such services. It also provides for the possibility of concluding a legal assistance agreement with a larger number of individuals by a person using supported decision-making instruments.
Another new institution introduced in the draft bill is guardianship officer for adults, provided for in Section III. According to the bill’s provisions, there will be two types of guardianship officers: supporting and representative. General provisions are also provided for both types. Article 10 contains directives for courts, obliging them to determine the extent to which a person in need of support is able to manage their behavior and assess reality. Personal and financial circumstances, as well as the type of matters requiring support, should also be taken into account. The person receiving support will also be able to choose their guardianship officer, but the designated person must meet the general formal requirements for being a guardian, as defined in Article 12 of the bill. Specifically, the person must be of legal age, possess qualifications demonstrating their conscientiousness in performing their duties, and have consented to become such a guardian during the proceedings. Obviously, this person cannot be the person themselves who is receiving support. According to the current version of the bill, the period of holding the position will be 5 years or less, unless the court determines that the grounds for appointing a curator are impossible to change – then the maximum specified period for appointing a curator will be 10 years.
The distinction between the two types of guardians is based on the current division into full and partial incapacitation. While actions taken by a represented person (appointed representative guardian) without the guardian’s consent will not be invalid, they will need to be confirmed by the guardian, unless they involve incurring an obligation or disposing of property whose value exceeds the amounts determined by the court during the proceedings. Therefore, the task of such a representative will be to express consent (and therefore assess the consistency of the legal act’s content with the represented person’s interests) to perform a given action excluded by the court from the amount designated for ordinary management, or to undertake such an action on behalf of the supported person. A supporting guardian, on the other hand, will be appointed in situations in which the court determines that the person requires actual support in managing their affairs. This institution will be essentially identical to a legal assistant, but the scope of the person performing this function will be determined by the court.
The final institution envisaged by the bill is a registered power of attorney, which will be incorporated not into the act itself but into the Civil Code. This allows for the appointment of someone to oversee their interests, so to speak, “for the future.” This applies to situations in which the person being supported fears that they will somehow lose touch with reality in the future, the ability to manage their own affairs independently, and the ability to pursue their own interests. The power of attorney is “registered” because a Register of Powers of Attorney will be created specifically for this purpose. This register will list the scope of the power of attorney and will allow for the assessment of its validity.
It should also be mentioned that the draft provides for changes in the status of partially and fully incapacitated persons to temporarily supported persons, and curators and their guardians become, by operation of law, representative curators for a period of 5 years on the date of entry into force of the Act (12 months from the date of announcement).
SUMMARY
The draft law on instruments for supported decision-making could constitute a significant change. It amends other normative acts more than the statutory provisions themselves. However, it seems that a change is necessary. Ratified international agreements, in accordance with the Constitution of the Republic of Poland and the hierarchy of legal sources established therein, clearly indicate the applicability of the UN Convention on the Rights of Persons with Disabilities, which guarantees the preservation of legal capacity and the provision by the state party of appropriate support measures, not substitution, in carrying out legal actions.
[1]The Civil Code Act, Journal of Laws 2025, item 1071, of 2025/08/06;
[2]Resolution of the Supreme Court of 5 October 2022, II CSKP 1846/22;
[3] Convention on the Rights of Persons with Disabilities. New York. 2006.12.13. Journal of Laws 2012.1169 of 2012.10.25;
[4] List number: UD80;