Serious accidents resulting in brain injury may cause disturbances in the victims’ mental health, which are often atypical. If the deterioration of mental health is grave enough to impede the ability to manage affairs, under the Polish law the victim will lose the capacity to perform acts in law.
What does this mean in practical terms? For example, that a contract with a law firm, or a settlement, signed by the victim, would be null and void. This is an instance of the absolute nullity of a legal action.
In order to avoid this, one needs to obtain a court ruling on the full incapacitation of the injured party. Only then his or her interests – including those relating to their representing law firm or to other third parties – are protected by the guardian. However, the guardian is required to obtain the prior consent of the Family Court in all important matters concerning the incapacitated person or his or her assets. The guardian, who is treated as the incapacitated person’s statutory representative, is obliged to obtain consent of the Family Court in actions that exceed daily management of the assets. There is no definition of the aforementioned actions that exceed daily management, therefore it should be always interpreted on an individual basis, and it will typically depend on the value of the transaction at hand. An action taken without such consent is null and void.
What is the moral of all of the above?
In cross-border cases we must remember that if the victim is a Polish citizen, his lex patriae will govern the matter. This means that in respect of legal capacity, capacity to perform acts in law, as well as incapacity, Polish law will be applicable. In addition, under article 11061 § 2 of the Polish Code of Civil Procedure, if the person who is to be incapacitated is both a Polish citizen and is domiciled or habitually resident in Poland, the jurisdictions of the Polish courts is exclusive.
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