Can the child sell his/her mentally ill father’s land?

Legal situation:

I have a land plot at Thanh Hoa province, but my father named on the certificate of land use rights. Unfortunately, my father has got mentally ill, so he does not have enough civil capacity. I’d like to ask that if I want to sell that land plot, what the procedures are and legal documents that I need to prepare. Thank you.

FDVN’s opinions:

Thank you for concerning and trusting in FDVN’s legal services. Based on your consulting requirements, after studying the legal documents, FDVN Law Firm offers the following advice:

[1] Pursuant to Article 22 of the Civil Code 2015, a mentally ill person is not automatically determined that he or she has lost his/her civil capacity. He or she is only determined to have lost his/her civil capacity when the Court issues a decision to declare this person has lost his/her civil capacity based on the opinion of forensic-psychiatric examination. At that time, every transaction of this person will be established and performed by his/her legal representatives.

Clause 53 of the Civil Code 2015 stipulates that: If both parents are incapacitated persons or either of them is a legally incapacitated person and the other does not fully meet requirements to be a guardian, the eldest child shall be the guardian; if the eldest child does not fully meet the requirements to be a guardian, the next eldest child shall be the guardian.

Thus, your father is only considered to be lost his civil capacity when there is an effective judgment or decision of the Court, and at this time, your father’s transactions will be formed, conducted by the legal representatives. The representatives can be your mother or other children in your family. In case there is a dispute on appointing a guardian, the Court will decide on the appointment.

[2] To transfer the assets named by your father, you need to take the following steps:

Step 1: Request the court to declare the incapacitated person and appoint the People’s Court of the district, city level where the requested person resides to declare the loss of civil act capacity.

The application includes:

• An application form declaring a person has lost his/her civil capacity (under form No.01 of Resolution No.04/2018/NQ-HDTP);

• The Report on Conclusion is issued by the competent professional agency and other pieces of evidence to prove that the requested person got a mental illness. If there is no conclusion of the competent professional agency, it can request the Court to solicit an expert assessment.
• Documents, pieces of evidence proving that the requesting person has the right to request.
• Certificate of birth, ID number, ID Identification, passport, Household book, Certificate of the Marriage of the requested person to declare the loss of civil capacity.
• Other relevant documents.

Step 2: Register guardians for the mentally ill person.

The requesters for guardianship registration submit the guardianship registration declaration made according to a set form and the guardian appointment documents to the civil status registration agency (People’s Committee of commune-level).

The dossier includes:

• The guardianship declaration is made according to set form;
• Documents proving the conditions for natural guardianship (documents proving father and mother, or marriage relationship,…)
• Decision of the Court on the guardianship decision.
•  ID card and household book of the guardianship requester.

Within 3 working days after receiving complete dossiers, if seeing that the law-prescribed conditions are fully met, the justice and the civil status officer shall record both the requested person and the guardian registrant in the civil status book, and report to the chairperson of the commune-level People’s Committee to issue an extract to the requester.

(Pursuant to Article 20, 21 of the Law on Civil Status 2014)

However, because you want to sell the land plot, according to Clause 1 Article 59 of the Civil Code 2015, selling the assets, which has a large value of the ward (i.e. your father), must be approved by the guardianship supervisors. 

The supervisors are the relatives of the guardianship such as wife, father, mother, children of the ward and they must register at the People’s Committee of Commune level where the ward resides if observing the guardianship related to the management of assets.

After completing the above registration steps, you can conduct the transfer of land use rights owned by your father who has lost the civil capacity.

Above is the FDVN’s opinion related to your consulting requests based on studying the legal provisions. Hopefully, this advice would be helpful to you.

Nguyễn Vân Anh – FDVN Law Firm

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