Pratice area

The protection of vulnerable adults is a central issue for practitioners of family law, tax law and asset planning. Bornhauser has particularly specialised expertise in this respect and works very closely with notaries in the field. It provides advisory services (including drafting powers of attorney) and also conducts and monitors court proceedings before the Protection Litigation Judge (Juge des Contentieux de la Protection) (who has replaced the Guardianship Judge - Juge des Tutelles) at the Courts of Justice. 

A vulnerable person is someone who is no longer able to take sole responsibility for his or her personal and/or wealth interests owing to a more or less serious alteration in his or her mental and/or physical faculties. Once this impairment has been recognised by a doctor listed as an expert with the Public Prosecutor, protection can be provided for the vulnerable adult. It must be ordered by the judge and may take several forms, which may impose a varying degree of restrictions on the person responsible for the protection, and may allow the protected adult to do certain things alone or prevent him or her from doing so.  

The law setting out the 2018–2022 plan for and reforms of the judicial system (L. No. 2019-222, 23 March 2019) amended Article 428 of the Civil Code to include the main principles governing the protection of vulnerable adults. These main principles are as follows:

• Protective measures are subsidiary measures;
• Protective measures must be proportionate and necessary;
• Protective measures must be adapted to the individual based on their impairment;
• Court proceedings, with or without counsel present (as the interested party prefers), are required for protective measures to be put in place, enforced, and/or terminated.

Different protective measures may be considered, depending on the person’s condition.

I. FAMILY AUTHORISATION (HABILITATION FAMILIALE)

A family authorisation enables the relatives of a vulnerable person who is unable to make their wishes known to represent or assist that person with some or all of their everyday activities, depending on their condition. The person to be protected must be no longer able to look after their own interests as the result of a deterioration – recognised by a doctor – of their mental or physical faculties such that they are prevented from expressing themselves.

A family authorisation must be authorised by a protection litigation judge.  It differs from the other protection measures - judicial protection (sauvegarde de justice), curatorship (curatelle) and guardianship (tutelle) – because once a person is found to need a family authorisation, the judge ceases to be involved  unless she or he receives an application to replace a family authorisation with a judicial protection measure or vice versa. The family authorisation seems to be a tool for simplifying family guardianship. 

II. JUDICIAL PROTECTION (SAUVEGARDE DE JUSTICE)

Judicial protection meets a one-off need for legal protection. The measure is put in place for one year, renewable once for the same length of time. After that, it becomes void (Civil Code, Art.439) . 

Judicial protection may be granted by order of the protection litigation judge on an application accompanied by a detailed medical certificate, or decided by a psychiatrist based on a statement from the public prosecutor (Civil Code, Art. 434. - CSP, Art. L. 3211-6. - CASF, Art. R. 311-0-8).

Judicial protection is an autonomous measure, which means the protection litigation judge may grant it pending a determination of the most appropriate measure. When granted by a court without appointment of an administrator, judicial protection preserves the protected person’s full contractual capacity but includes the initiation of legal action against contracts that are detrimental to the protected person (Civil Code, Art. 465, para. 1).

III. CURATORSHIP (CURATELLE)

Curatorship is only granted if it is established that judicial protection cannot provide sufficient protection (Civil Code, Art. 440 para. 2.)

Requests for curatorship measures must be made by application to the protection litigation judge and must include, on penalty of inadmissibility, a detailed medical certificate (Civil Code, Art. 431. - CPC, Art. L. 1219).

Only the persons listed in the Civil Code may be appointed as curator. Moreover, curatorship is limited to 5 years. 

Curatorship may be simple or enhanced. A person under enhanced curatorship has limited financial independence. They may nonetheless carry out day-to-day transactions and administrative acts on their own, including signing a residential lease as landlord or tenant. In a simple or enhanced curatorship, the person must be assisted by their curator to dispose of property and to bring or defend against legal actions.

IV. GUARDIANSHIP (TUTELLE)

Guardianship is necessary when the person needs to be "represented in a continuous manner in legal transactions (les actes de la vie civile)" (Civil Code, Art. 440, para. 3). The text focuses essentially on the protection of assets. It is granted by the protection litigation judge after submission of a detailed medical certificate and an interview between the judge and the vulnerable adult, save in special circumstances relating to the adult's condition.

A person under guardianship has residual legal autonomy (Civil Code, Art. 458). Guardianship is the most comprehensive measure and remains the benchmark regime.