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Endring av vergemålsloven

Justisdepartementet har forslag til endring i vergemålsloven på høring. Forslaget er en følge av Riksrevisjonens kritikk av vergemålsreformen og VGs avsløringer. Justisministeren skal ha honnør for å vise handlekraft, men forslaget til lovendringer kan med fordel bidra til at vergemålsloven erstattes med en lov om beslutningsstøtte.

Vergemålslovgivningen har en tradisjon som bygger på at den fornuftige bestemmer over den ufornuftige. Den nye vergemålsloven som ble iverksatt i 2013 hadde som målsetning å endre på dette forholdet. Både Riksrevisjonen og VG har imidlertid vist svært grundig at nissen ble med på lasset. Tradisjonen og holdningene fra umyndiggjøringsloven av 1898 og vergemålsloven av 1927 ble videreført i forvaltningen av dagens lovverk. Departementets lovforslag synes først og fremst å være pressiseringer av selvbestemmelsen til personer under vergemål og en styrking av rettsikkerheten. Kjernen i endringsforslagene er presiseringene i §§ 20 og 33, samt endringene i klageordningen. En lovrevisjon bør imidlertid gå lenger enn dette. Vi bør ta lærdom av erfaringene med nåværende lov og konsekvensen av en økende forståelse av FN-konvensjonen om rettighetene til mennesker med nedsatt funksjonsevne.

Lov om beslutningsstøtte

Vergemålsloven bør endres til en lov om beslutningsstøtte. Lovens formål må være hjelpe dem som har behov for bistand til å fatte beslutninger som i størst mulig grad er i samsvar med egne verdier og preferanser. Rettighetsutvalget foreslo en slik endring (se NOU 2016: 17 På lik linje, avsnit 19.2.3, side 183). Slikt lovverk finnes allerede. Texas har sin Supported decision-making agreement act. Irland fikk i 2015 Assisted Decision-Making (Capacity) Act. I 2018 fikk Peru nytt lovverk som anerkjenner at mennesker med nedsatt funksjonsevne har full rettslig handleeven. Mange andre land har gått i samme retning og flere er i ferd med å tilpasse lovverket til beslutningsstøtte.

En tittelendring vil gi et svært klart signal om siktemålet med lovverket er å bistå den enkelte til å utøve sin rettslige handleevne, ikke å bestemme over den enkelte. På samme måte kan en endre benevnelsen fra verge, til beslutningshjelper.

§§ 20 og 33 Vilkår for vergemål og vergens plikt til å høre på den som er under vergemål

Tolga-saken har med tydelighet vist alle at personer settes under frivillig vergemål uten at de ønsker et slikt vergemål. Det sentrale i disse uakseptable situasjonene er knyttet til begrepene samtykkekompetanse, forståelse og vilje. Forhold som inngår i § 20 om opprettelse av vergemål og i § 33 om vergens plikt til å følge viljen til personen under vergemål.

Departementet foreslår å endre § 20, 2. ledd til:

Den som settes under vergemål, skal skriftlig samtykke i opprettelsen av vergemålet, vergemålets omfang og hvem som skal være verge. Er han eller hun ikke i stand til å forstå hva et samtykke innebærer, kreves ikke skriftlig samtykke,men vergemålet kan ikke opprettes dersom det må legges til grunn at dette vil være i strid med vedkommendes vilje. Første og annet punktum gjelder ikke hvis vergemålet omfatter fratakelse av den rettslige handleevnen.

Departementet foreslår videre å endre å erstatte § 33, 2. ledd med den nye teksten:

Er den som er satt under vergemål, ikke fratatt den rettslige handleevnen, kan vergen ikke foreta disposisjonen hvis den som er satt under vergemål, motsetter seg det. Dette gjelder ikke hvis han eller hun ikke er i stand til å forstå hva disposisjonen innebærer, men vergen kan i slike tilfeller likevel ikke opptre i strid med vedkommendes vilje. Fylkesmannen, eller vergen med fylkesmannens samtykke, kan innhente legeerklæring for å få klargjort om vedkommende er i stand til å forstå hva disposisjonen innebærer.

Forslaget til endring er klargjørende. Hva som er å forstå og hva som menes med vilje, bør presiseres grundig i forarbeidene til en eventuell lovendring. Her bør det også inngå hvordan hjelp og tilrettelegging kan bidra til forståelse. Spesielt viktig er det å spesifisere noen rammer for fremgangsmåter nå den aktuelle personen ikke klart og tydelig uttrykker sin vilje. I følge fylkesmannen i Hedmark, stolte fylkesmannen på vurderingene som ble gjort i vurderingene som ble gjort i Tolga kommune. En slik regel er åpenbart for enkel. Ulik forståelse av samtykkekompetanse, forståelse og vilje, er en av hovedårsakene til konfliktene på vergemålsfeltet.

Det er mulig å lage visse rammer for hva som bør gjøres for å sikre viljen til personer som ikke selv klart og tydelig uttrykker evner å uttrykke den. Alle som kjenner personen godt, kan ha begrunnede fortolkninger av personens vilje. Det er viktig å få frem disse fortolkningene, enten de kommer fra foreldre, søsken, tjenesteytere eller andre som kjenne personen godt.

Enda vanskeligere kan det være i situasjoner hvor en bør handle i strid med med personens uttalte mening. Hvem har rett til å si at en persons uttalte vilje er i strid med personens preferanser og på hvilket grunnlag kan en trekke slike slutninger?

Departementet er kjent med problemstillingene og skriver:
"Et «nei» fra en person med langt fremskreden demens vil for eksempel ikke nødvendigvis kunne anses å reflektere vedkommendes reelle vilje. Det kan være at personen ikke er i stand til å forstå hva et «nei» i realiteten innebærer. På den annen side kan det være at personens standpunkt er i samsvar med ønsker vedkommende også tidligere har gitt uttrykk for, for eksempel at den eiendelen vergen vil selge, er tiltenkt arvingene slik at den beholdes i slekten. I et slikt tilfelle er det større grunn til å anta at personens motstand er reell og noe vergen må ta hensyn til. "

Selv om departementet innser problemet, så kommer de ikke med noen skisse til løsninger, utover det som juristene kaller for konkrete vurderinger. Kanskje det er på dette punktet hvor det er viktigst å etablere en god beslutningsstøtte og å sørge for at alle ulike og relevante synspunkter kommer frem.

Et typisk og alvorlig tilfelle: En person med utviklingshemming plasseres i et bofellesskap. Foreldrene hevder at personen ikke ønsker å bo i bofellesskapet. Tjenesteyterne hevder personen trives i bofellesskapet. Selv bekrefter personen begge synspunktene, avhengig av hvem som spør. Utkastet til lovverk er til liten hjelp for behandling av slike saker.

Høringsnotatet sier ikke noe om § 20, første ledd. En bør imidlertid stille spørsmål med om diagnoseforankringene bør være et nødvendig vilkår for etablering av vergemål.

Klagerett

Den vesentligste endringen i klageretten i departementets lovforslag, er en utvidelse av personkretsen som kan kreve et verge fjernet.

Vergemålslovens § 29, 2. ledd sier:

Fylkesmannen kan frata en oppnevnt verge vervet som verge dersom dette vil være til det beste for den som er satt under vergemål. Fylkesmannen skal frata en oppnevnt verge vervet dersom hensynet til den som er satt under vergemål, gjør dette nødvendig. Fratas vergen vervet, skal det oppnevnes en ny verge.

Departementet foreslår nytt 2. ledd:

Fylkesmannen kan av eget tiltak eller etter begjæring fra personen som er under vergemål, frata en oppnevnt verge vervet som verge dersom dette vil være til det beste for personen. Er personen ikke i stand til selv å fremsette en slik begjæring, kan begjæring fremsettes også av den som har begjært vergemålet, og av dem som kan begjære vergemål etter § 56 første ledd bokstav b. Fylkesmannen skal frata en oppnevnt verge vervet dersom hensynet til den som er satt under vergemål, gjør dette nødvendig. Fratas vergen vervet, skal det oppnevnes en ny verge. Den som har fremsatt begjæring etter første eller annet punktum, kan påklage vedtaket til den sentrale vergemålsmyndigheten.

Departementets forslag synes å være en forbedring av nåværende lovverk. Spørsmålet er om forslaget er tilstrekkelig. Lite blir sagt om beslutningsstøtte. Det skjønnsmessige rommet for å avgjøre personens vilje i de tilfellene personen selv ikke klart og entydig uttrykker sin vilje, er nærmest grenseløst. Muligheten til å overstyre en persons vilje hvis personen ansees å være svært forvirret, synes å være like grenseløs.

Høringsfristen for lovforslaget er satt til den 14. januar. Over nyttår vil NFU påbegynne arbeidet med å utarbeide en grundig høringsuttalelse.

Jens Petter Gitlesen

27 desember 2018

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