Guidance on determining the guardian of a person lacking legal capacity in Vietnam

Guidance on determining the guardian of a person lacking legal capacity in Vietnam (Internet image)

1. When is a person considered to lack of legal capacity under the law in Vietnam?

According to Article 22 of the Civil Code 2015, the regulation on the lack of legal capacity is as follows:

- When a person, due to mental illness or another disease, is unable to perceive or control his/her acts, upon the request of a person with related rights and interests or of a competent agency or organization, the Court shall issue a decision declaring such person as lacking legal capacity based on a psychiatric forensic examination conclusion.

- Civil transactions of a person lacking legal capacity must be established and performed by their legal representative.

Thus, a person is considered to lack of legal capacity when the Court issues a decision declaring them as such based on a psychiatric forensic examination conclusion.

2. Are civil transactions with a persons with limited legal capacity in Vietnam? 

Article 125 of the Civil Code 2015 provides regulations on the invalidity of civil transactions established and performed by minors or legally incapacitated persons or persons with limited cognition and behavior control or persons with limited legal capacity in Vietnam as follows:

- When a civil transaction is established and performed by a minor, a person lacking legal capacity, a person with cognitive or behavioral difficulties, or a person with restricted legal capacity, at the request of their representative, the Court declares such transaction null and void if according to law, the transaction must be established, performed, or agreed upon by their representative, except for the cases specified in Clause 2, Article 125 of the Civil Code 2015.

- Civil transactions mentioned in Clause 1, Article 125 of the Civil Code 2015 are not null and void in the following cases:

+ Civil transactions of people under six years old or people lacking legal capacity fulfilling their essential daily needs;

+ Civil transactions that only give rise to rights or exempt obligations for minors, persons lacking legal capacity, persons with cognitive and behavioral difficulties, or persons with restricted legal capacity with the parties who established, performed transactions with them;

+ Civil transactions are acknowledged as valid by the transaction setter after reaching adulthood or after recovering legal capacity.

3. Guidance on determining the guardian of a person lacking legal capacity in Vietnam

In the absence of a guardian as stipulated in Clause 2, Article 48 of the Civil Code 2015, the natural guardian of a person lacking legal capacity is determined as follows:

- If the wife is a person lacking legal capacity, the husband is the guardian; if the husband lacks legal capacity, the wife is the guardian.

- If both parents lack of legal capacity, or one lacks legal capacity and the other does not qualify to be a guardian, the eldest child is the guardian; if the eldest child does not qualify, the next adult child who fulfills the conditions is the guardian.

- If an adult person lacking legal capacity does not have a spouse or children, or if they have but none qualify to be a guardian, then the parents are the guardians.

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