High Court Decision no. 10/2026 (appeal in the interest of the law): a major change to the duration of special guardianship in re-examination of interdiction

On 12 October 2026, the High Court of Cassation and Justice (the Panel for appeals in the interest of the law) delivered Decision no. 10 in case no. 1114/1/2026, bringing an extremely important clarification on the protection of persons with psycho-social disabilities.

What did the High Court of Cassation and Justice rule?

The High Court held that:

“In proceedings for the re-examination of a judicial interdiction, where the court replaces it with special guardianship and finds that the deterioration of the protected person's mental faculties is permanent, the maximum duration for which special guardianship may be ordered is 15 years.”

A radical change from previous practice and the opinions of the National Institute of Magistracy

This decision marks a significant turning point in court practice. Until now, the majority view adopted by the courts was entirely different.

For example, at the Meeting of the presidents of the civil sections of the courts of appeal (Bucharest, 22 September 2025), dedicated to unifying practice in family law, the participants had unanimously endorsed the opinion of the National Institute of Magistracy (INM). According to that interpretation:

• Under Art. 20(2) of Law no. 140/2022, in re-examination proceedings the court could either replace the interdiction with a protective measure or lift it.
• Under Art. 168(5) of the Civil Code, where replacement with special guardianship was required, it could be ordered for a maximum period of 5 years.

The legal tension with Constitutional Court Decision no. 601/2020

The solution adopted by the High Court in Decision no. 10/2026 appears to conflict with the principles set out by the Constitutional Court of Romania in Decision no. 601 of 16 July 2020 – a landmark decision that underpinned the legislative reform in this field (Law no. 140/2022).

In the reasoning of Decision no. 601/2020, the Constitutional Court emphasised the international standards in this area:

1. Reasonable duration and periodic review: a protective measure must apply for the shortest possible period and be subject to re-assessment at fixed, predetermined, flexible intervals, without excessive duration.
2. Examples from comparative law: the Court referred to the French model (where the measure is initially established for a maximum of 5 or 10 years) and the Swiss model (re-examination at regular intervals).

Setting a maximum term of 15 years raises questions as to whether protective measures will be re-assessed periodically, effectively and coherently, in order to check whether the grounds that led to them have ceased or changed.

The practical dilemma: what happens to cases already decided?

The first and most important practical issue raised by this decision is: how will re-examination cases decided before the appeal in the interest of the law be handled?

In those cases, applying the previous interpretation (based on Art. 168(5) of the Civil Code and the INM guidance), the courts replaced the interdiction with special guardianship for a maximum of 5 years, setting the re-assessment date at the end of that term.

• Are those judgments affected retroactively? (No – decisions in appeals in the interest of the law take effect only for the future, from their publication in the Official Gazette.)
• Will legal representatives/guardians be able to request an extension of special guardianship up to 15 years on the basis of the new decision?
• How will courts approach requests for modification/extension filed afterwards?

Conclusion

Decision no. 10/2026 of the High Court will undoubtedly bring a profound change in the handling of cases concerning persons with psycho-social disabilities. While it offers long-term stability where the deterioration of mental faculties is irreversible, it remains to be seen how this approach will be reconciled with the periodic-review requirements set by the Constitutional Court and how transitional situations will be resolved in practice.

Note: This article reflects my legal opinion and is an analysis of the decision mentioned. For advice on specific guardianship or protection cases, I invite you to contact me.