The issue is that under the current legislation, persons with mental health issues either possess full legal capacity or are completely deprived of legal capacity by a court decision.
Meanwhile, the approach of the ECHR regarding this matter is as follows: member states have a margin of appreciation concerning the limitation of a person's legal capacity and even the deprivation of a person's legal capacity, the application of which must be a strict necessity. Depriving a person of legal capacity is a severe measure that should be applied only in exceptional circumstances (X and Y v. Croatia, application no. 5193/09, judgment of February 3, 2012). Deprivation of legal capacity may be lawful, for example, if the person is unable to control themselves, which causes problems related to social life or health, or when it is necessary to maintain public order and ensure the rights of other persons.
The legitimate aim of limiting legal capacity implies its embedding in the law and ensuring the principle of proportionality. This is only possible if the legislation provides an opportunity to ensure individualized and tailored approaches to any given case. Accordingly, alongside the extreme option provided by legislation—the possibility of completely depriving a person of legal capacity—it is proposed to also foresee an intermediate alternative, namely, the possibility of limiting legal capacity for all those cases where a mental disorder does not completely deprive a person of the ability to understand the meaning of their actions, foresee their consequences, or guide them. In this case, guardianship will no longer be established over the person, but trusteeship will be established instead.
A person recognized as having limited legal capacity will have the right to manage their salary, scholarship, and other income, conclude minor domestic transactions, engage in transactions aimed at receiving gratuitous benefits that do not require notary certification or state registration of rights arising from transactions, etc.
Based on the relevant conclusion of a forensic psychiatric expert examination, the court may also define an additional scope of rights.