Provisions exist which promote supported decision-making, which enable people with and without dementia or network of persons to discuss issues and make decisions | Indonesia Provisions exist which promote supported decision-making, which enable people with and without dementia or network of persons to discuss issues and make decisions | Indonesia

17 Apr 2022

For people who are perceived as not having capacity to make legal and financial decisions, the nomination of a trusted person is regulated under the Indonesian Civil Code, which is still largely based on the Dutch colonial legal system (Hariyanto, 2019). The process is known as pengampuan (Dutch: curatelle, English: conservatorship), and the legal basis are Article 433, 434, 437, 438, 439, 440, 441, 442, 449 of the Indonesian Civil Code (Indonesia: Civil Code, 1847) which are further described below. The fact that this is based on a legal system dating a century back might explain the use of a stigmatising and derogatory language [dungu (English: stupid) translated into ‘simple-mindedness’; and gila (English: crazy), translated into ‘insanity’).

Legal basis for pengampuan/curatelle/conservatorship:

  • Who is eligible to be put under conservatorship: ‘Article 433. An adult, who is in a continuous state of simple-mindedness, insanity, or rage, shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time. An adult individual may be placed under conservatorship as a result of improvidence.’ (Indonesia: Civil Code, 1847, p.65)
  • Who can have the conservatorship (trusted to make decisions): ‘Article 434. Each blood relative shall be authorized to request conservatorship on behalf of one of his relatives, due to his simple-mindedness, insanity, or rage. Conservatorship in respect of a person who is improvident may only be requested by the blood relatives in direct line, and by those in a collateral line up to and including the fourth degree. Due to one or more reasons, one spouse may request to put the other under conservatorship. An individual, who feels unable to take proper care of his affairs, due to limited mental capacity, may himself request to be placed under conservatorship.’ (Indonesia: Civil Code, 1847, p.66).
  • Time of the conservatorship being effective:
  • Article 446. The conservatorship shall be effective as of the date that the judgment or decision is passed. All acts committed thereafter by the individual placed in conservatorship shall be invalid by law….
  • Article 447. All acts committed as a result of simple-mindedness, insanity or rage, prior to the judgment granting conservatorship, may be invalidated if the grounds for seeking guardianship appeared to have existed at the time that the acts were committed’ (Indonesia: Civil Code, 1847, p.67).
  • Supporting documents needed to apply for conservatorship:
  • ‘Article 437. The events, which demonstrate simple-mindedness, insanity, rage, or improvidence, shall be specifically described in the letter of request, and the evidential documents as well as a submission of one of the witnesses shall also be enclosed…
  • Article 438. If the court of justice is of the opinion that the events are sufficiently significant to lead to a conservatorship, then the court shall conduct a hearing of the blood relatives or relatives by marriage…
  • Article 439. The court of justice shall, after a hearing or proper summons of the individuals as referred to in the previous article, question the individual whose conservatorship has been requested; in the event that he is immobile, the questioning shall take place in his residence by one or more judges designated thereto, accompanied by the court clerk, and in all matters, in the presence of the prosecution counsel… The prosecution counsel is not required to be present at this questioning; minutes shall be drawn up of the questioning of which an authentic copy shall be submitted to the court of justice… The questioning shall not take place before the letter of request as well as the report containing the views of the blood relatives, have been notified to the individual whose conservatorship is requested.’
  • Others
  • ‘Article 440. In the event that the court of justice, after the hearing or proper summons of the blood relatives or relatives by marriage, or after having heard the individual whose conservatorship is requested, decides that it has been adequately informed, the court shall, without any further formalities, deliberate upon the letter of request; in the event that it decides otherwise, the court shall instruct the hearing of the witnesses for the purpose of clarifying the matters presented.
  • Article 441. Following the questioning mentioned in article 439, the court of justice shall, in the event that there are grounds therefor, nominate a provisional administrator, to take care of the personal matters and assets of the individual, whose in conservatorship has been requested.
  • Article 442. The judgment upon a request for conservatorship shall be passed in a public court session, after a hearing or proper summons of the parties, and pursuant to the conclusions of the prosecution counsel…
  • Article 449. Upon the judgment in respect of conservatorship obtaining legal validity, the court of justice shall appoint a conservator. The appointment shall be immediately notified by the court to the Orphans’ Chamber. The supervising conservatorship shall be assigned to the Orphans’ Chamber… In this regard, the provisional administrator’s involvement shall cease, and he shall be required to submit an account of his administration; in the event that he is appointed as conservator, the account shall be submitted to the supervising conservator’ (Indonesia: Civil Code, 1847, p.66-67).

Hariyanto, E. (2019). BURGELIJK WETBOEK (Menelusuri Sejarah Hukum Pemberlakuannya di Indonesia). Al-Ihkam: Jurnal Hukum Dan Pranata Sosial, IV(1), 141–152.

Indonesia: Civil Code. (1847).