STRØBYE AND ROSENLIND v. DENMARK JUDGMENT
Commission on the Elections Act). However, the wording still said that the
relevant person must not be “barred from managing his or her [own]
property owing to a declaration of legal incompetence”.
47. The expression “the right to manage one’s [own] property” was
removed by a statutory amendment in 1965. Accordingly, this provision
was given the same wording as section 29 of the Constitution, the only
condition now being that a person must not have been “declared legally
incompetent”.
48. Section 1(1) of the Parliamentary Elections Act retained this
wording, except for amendments to the age qualifying citizens for suffrage,
until 1997. In 1997, the provision was reworded to say that persons who
were both subject to guardianship and who had been deprived of their legal
capacity under section 6 of the Guardianship Act did not have the right to
vote. The amendment was made in the light of the enactment of the
Guardianship Act. The amendment to the Parliamentary Elections Act took
into account the fact that the Committee on the Act on Legal Competence
had assessed, in particular, the meaning of the wording of the Constitution
in the light of the new Guardianship Act.
49. Section 1 of the Parliamentary Elections Act, as currently worded,
came into force on 1 January 2019 (see section 2 of Act no. 1722 of
27 December 2018) to reflect the new possibility to only partially deprive a
person of his or her legal capacity. The provision is drafted to the effect that
persons declared legally incompetent are disenfranchised, whereas persons
deprived only partially of their legal capacity are deemed to be still legally
competent and thus have the right to vote in general elections.
C. The Guardianship Act
50. In 1996, the Act on Legal Competence was replaced by the
Guardianship Act, which distinguished between (i) persons who under
section 5 were subject to guardianship but remained legally competent, and
(ii) persons who were subject to guardianship under section 5 and were also
deprived of their legal capacity under section 6.
51. The Guardianship Act defined three kinds of guardianship for adults.
Guardianship under section 5 was the standard arrangement. It read as
follows:
Section 5
“(1) A guardianship order can be made in respect of any person unable to manage
his or her own affairs owing to mental unsoundness, including severe dementia, or
mental disability or other severe impairment, if necessary.
(2) A guardianship order can be made in respect of any person who is unsuited to
manage his or her own financial affairs owing to illness or other severe decline and
who makes a request [for such an order] himself or herself – if necessary instead of
appointing a surrogate decision-maker for such a vulnerable adult under section 7.
13