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France

Legal capacity and proxy decision making

Proxy decision making

In 2007, French legislation adopted a new law that constitutes a thorough reform of the systems for the legal protection of vulnerable adults. As it was, the French scheme was based on laws dating back to 1966 and 1968 that no longer corresponded to current demographic and sociological trends. There were multiple reasons, therefore, behind the reform: longer life expectancy and an ageing population, the rise in the number of decisions pronounced and overloaded courts, and the estimated cost of the system, which would have continued to increase without the reform.

We must also note that as time passed, legal protection applied more and more to problems of social and economic insecurity rather than physical or psychological vulnerability. The reform thus aimed to focus on the legal protection on people whose impaired physical and mental faculties made them unable to look after their own interests. Reasons of a more social nature (such as idleness, extravagance, intemperance) would be the object of administrative measures to establish social and budgetary supervision.

We should note furthermore that the Law of 5 March 2007, which entered into force on 1 January 2009, relates to the safeguarding both of people (health, personal life, etc) and of their property.

The French legal protection system, organised by the Law of 1968, established three types of protective measures: two permanent, curatorship (curatelle) and tutorship (tutelle) and one transitional, judicial protection (sauvegarde de justice). The reform, implemented by the Law of 5 March 2007, simplifies and harmonises that situation.

Judicial protection is a measure of protection which applies to a person who needs temporary protection or who needs to be represented for certain specified acts.

Curatorship is established when a person is not entirely incapable of handling his/her own affairs but needs to be assisted or supervised in carrying out civil acts.

Tutorship applies to a person who needs to be represented in a continuous manner in order to carry out civil acts.

The law reaffirms the principles of necessity, subsidiarity and proportionality for the safeguarding measures and strengthens certain rights of people under protection (e.g. the right to vote, obligatory hearing for an adult).

Finally, a new legal instrument was invented: the mandat de protection future (mandate for future protection). It enables anyone who is not under tutorship to appoint in advance, without any legal procedure, one or several people who will represent them in all civil acts, in preparation for a time when they might be unable to look after their own affairs.

General provisions applicable to all three systems of protection

There are a few general provisions that apply to all three systems of protection. These provisions are listed in articles 425 to 427 of the French Code Civil.

Conditions for the appointment of a guardian

Any person who is incapable of looking after his or her own interests due to a medically ascertained impairment is eligible for legal protection. Unless otherwise specified, the measure covers the protection of both the person and their property.

How guardianship is arranged

The request can be made by any of the following:

  • The person who needs protection
  • The spouse, the partner in a PACS (civil union contract) or the common law spouse if the relationship is ongoing
  • Any relative
  • Anyone who has a close and stable relationship to the person
  • The person who exercises the legal protection (mandataire spécial/de protection future, curateur, tuteur: special proxy or future protection proxy, guardian)
  • The state prosecutor, in his/her own right or following a request from a third party (e.g. social services, health or medico-social centre etc.) or if the file/application from a person able to make the request is incomplete.
  • In certain cases, the judge. S/he cannot do this when the measure is set up or increased but has the possibility when it is renewed, modified without increasing it or to substitute it for another measure, in which case s/he makes a ruling as a matter or course or on the request of the above-mentioned people. S/he can also make a ruling as a matter of course to revoke a mandate for future protection or to set up a measure of protection.

In addition, the judge can decide to put an adult under protection in two cases, which are described further on.

The following documents and details must be included in the request:

  • A detailed medical certificate showing that the person’s impaired faculties make them unable to look after themselves and the foreseeable development of their condition, filled out by a doctor chosen from the state prosecutor’s list
  • The personal data of the person to be protected (the name of the person to be protected and details of the facts motivating the request for protection)
  • List of people authorized to bring the case to court
  • The name of the person’s doctor, if known
  • All available details on the person’s family situation, finances and property

The request must be delivered by hand or sent by normal mail to the registry of the tribunal d’instance (first instance court).

The guardianship judge in the person’s or guardian’s place of residence is territorially competent. S/he investigates the request and holds a hearing – in private – with the person concerned (unless this is contrary to doctor’s orders), the person making the request, the lawyer of the person concerned and, if the judge thinks it necessary, with relatives and friends.

Who can be a guardian

Any person appointed in advance (désignation anticipée, advance designation, by a notarized or a private document) can be a guardian.

Otherwise, the Law of 5 March 2007 establishes the family’s central role. In order of preference and depending on the evaluation of the judge, priority is given to the spouse, partner, common-law spouse if still living with the person, relative or anyone living with the person or maintaining a close and stable relationship with him or her. Please note that the judge must follow these rules unless the interests of the protected person demand otherwise.

When there is no friend or relative who can take charge, a legal trustee for the protection of adults (mandataire judiciaire à la protection des majeurs) is appointed, chosen from a list established by the Préfet (local head of government) of the department. This mandataire judiciaire à la protection des majeurs can be either a non-profit organisation (association tutellaire) or a professional guardian (gestionnaire privé).

In France, there are also within certain institutions (i.e. those which are state-run with more than 80 beds) social services and agents who deal specifically with people under legal protection.

Expressly excluded are members of the medical or pharmaceutical professions and medical assistants who work with the protected person, as well as anyone who is the beneficiary of a trust set up by the protected person.

Measures to protect the ward from misuse of power

In all cases, the person's home and furniture are kept as long as possible. Should it become necessary to dispose of the dwelling or sell the furnishings, authorization must be obtained from the juge des tutelles (guardianship judge) (or the family council if there is one) who decides after hearing the opinion of a doctor who is on the official list maintained by the procureur de la République (state prosecutor). Keepsakes and other objects of a personal nature must not be sold and should be kept at the disposal of the protected person, for instance by the institution where the protected person is living.

The person responsible for protection cannot modify any bank or savings accounts opened in the name of the protected person, nor open new ones without the permission of the guardianship judge. When the person concerned has no bank accounts, the person in charge of protection will open one for him/her.

The right to appeal

An appeal against the decision must be filed within 15 days of the judgement. Appealing against the rejection of the case is possible only for the person making the request.

Judicial protection (sauvegarde de justice)

Judicial protection is covered by article 433 to 439 of the Civil Code.

Conditions for the appointment of a guardian

Judicial protection applies to a person who needs temporary protection or who needs to be represented for certain specified acts.

How judicial protection is arranged

Judicial protection is decided by the guardianship judge when a request that s/he receives to place someone under the tutelle or curatelle form of guardianship (tutorship or curatorship) demands an immediate safeguarding measure.

Medical protection might be requested from the state prosecutor by the doctor treating the person in need of protection, in which case a psychiatrist’s evaluation is required. However, if the person to be protected is hospitalized in a psychiatric institution, the psychiatrist’s evaluation is not required.

Who can be a guardian

If the person under protection has designated a mandataire (proxy) to manage his/her property, the mandate continues to be effective during the judicial protection, unless it is revoked or suspended by the guardianship judge (article 436 of the Civil Code).

If there is no mandate, the rules of gestion d’affaire (Negotiorum gestio) are applicable.

The duties and responsibilities covered by judicial protection

Those entitled to apply for tutorship on the person’s behalf are obliged to perform the civil acts of conservation required for the management of the person's assets. This obligation also applies to the director of the institution where the person is receiving treatment or to the person housing the adult under protection.

For other civil acts, any interested person may give his/her opinion to the guardianship judge. The judge may decide to appoint a person for a specific civil act or for a series of civil acts of the same nature subject to certain conditions (article 437 of the Civil Code).

Consequences of judicial protection for the person concerned

A person who has been placed under judicial protection by the court retains his/her legal capacity and therefore does not lose the power to exercise his or her rights.

Nevertheless, any civil act or commitment they carry out may be nullified if it is prejudicial to the person or it may be reduced if considered excessive. These acts can be invalidated (i.e. considered null and void due to insanity) by virtue of article 414-1 of the Civil Code. This type of action may only be taken during the person's lifetime by himself/herself and after the person's death by his/her heirs. Such actions must be taken within five years.

To make its decision, the Court takes into consideration the assets of the protected person, the good or bad faith of the other people involved and whether or not the nature of the operation is valid.

Duration of judicial protection

Judicial protection is valid for one year, after which it is renewable once (with a medical certificate and after a hearing with the protected adult). It ends automatically after the first year if it has not been renewed.

Curatorship (curatelle)

Curatorship is covered by article 440 of the Civil Code.

Conditions for the appointment of a curator

Curatorship is established when a person is not entirely incapable of handling their own affairs but needs to be advised or supervised in carrying out civil acts. The Law of 5 March 2007 that came into force on 1 January 2009 does away with curatorship for extravagance, intemperance and idleness.

How curatorship is arranged

Please see the section on “general provisions applicable to all three systems of protection”.

Who can be a curator

Details of the people who can be appointed curator are also described in the general information on guardianship. In addition, the guardianship judge can appoint a surrogate curator to supervise the work of the curator.

The curator must be a legally capable adult or emancipated minor and not have been appointed as a trustee through a trust contract.

The duties and responsibilities of curators

The curator cannot take the place of the protected adult. His/her role is to assist him or her. This role can be reduced or reinforced by the judge but the decision must be backed up by a medical assessment or social inquiry. A decision to increase the responsibilities of the curator must be backed by a medical examination, but it is not necessary in order to reduce them because it is for the sake of the protected adult.

Exceptionally, the curator may ask the judge for authorization to carry out a specific act on behalf of the adult, if s/he considers that otherwise the interests of the adult would be seriously endangered.

The judge may decide to reinforce the curatorship. In this case, the curator receives the income of the person under protection and arranges for payment of expenses involving third parties, depositing any remaining funds into an account opened with an approved depositing institution. In such cases, the curator must submit accounts every year to the chief clerk of the magistrate's court.

Consequences of curatorship for the person concerned

A person who has been placed under curatorship may not, without the assistance of his or her curator, perform any civil act which, under the tutorship scheme, would have necessitated authorization from the family council or the judge.

The person subject to curatorship may carry out certain civil acts alone or with the assistance of the curator. Such acts are specified when the protective measure is set up or in a subsequent judgement. If the person carries out acts which s/he does not have the necessary authorization, they may be rendered null and void. Even those that s/he has the authority to carry out alone may be subject to rescission or deduction. Donations may only be made with the assistance of the curator.

Liability of curators (and of tutors)

The Law of 5 March 2007 states that curators/tutors are personally responsibility. Part of this responsibility may be delegated to a third party. If the delegated part is not carried out in the best interests of the protected adult, the curator/tutor is held responsible. The judge supervises the implementation of the measure.

Compensation of curators (and tutors)

The law does not foresee compensation of curators/tutors if the measure is executed by a member of the family. The legal effect of the marriage remains intact, which means that the spouse or common law spouse is obliged to take care of his/her husband/wife.

The judge may authorize the reimbursement of certain sizeable expenses if requested and if the relevant receipts are provided.

Professional curators /tutors are paid by the person under protection in accordance with his/her means. On top of fees, certain management costs of the curator/tutor may be reimbursed.

An additional remuneration may be allocated by the guardianship judge, notably when s/he confides to the manager tasks which exceed his/her normal powers

Duration of curatorship (and of tutorship)

The Law of 5 March 2007 limits the duration of curatorship and tutorship to five years but this is renewable.

It stipulates an obligatory re-examination every five years during which the judge hears the adult under protection in order to determine whether the legal protection is still necessary.

The judge can prolong the duration of the protection (beyond the five-year limit). Particular reasons must be cited and supported by the opinion of the doctor responsible for drawing up the medical certificate.

The judge must always justify prolongation of the measure, based on a medical examination of the adult. The reason for the prolongation must be that there is no hope of improvement of the adult’s condition.

Tutorship (tutelle)

Conditions for the appointment of a tutor

Tutorship can be instituted only when neither judicial protection (sauvegarde de justice) nor curatorship can ensure the protection needed. The option of tutorship is appropriate in cases where the person needs to be represented in a continuous manner in order to carry out civil acts. The 2007 law reinforces the protection of the person and his/her property including his/her home and bank accounts. The judge may decide to limit the measure if s/he sees fit.

How tutorship is arranged

Please see the section on “general provisions applicable to all three systems of protection”.

Who can be a tutor

Details of the people who can be appointed tutor are described in the general information on guardianship (please see above). In addition, the guardianship judge can appoint a surrogate tutor to supervise the work of the tutor.

The tutor must be a legally capable adult or emancipated minor and not have been appointed as a trustee through a trust contract.

The duties and responsibilities of tutors

In instituting the tutorship or subsequently, the judge may enumerate certain civil acts that the person under tutorship will have the capacity to perform him/herself, or with the assistance of the tutor.

Unless the guardianship judge rules otherwise, “strictly personal” acts can be carried out by the person under tutorship (e.g. choice of residence).

How the financial affairs of the person are handled

The manager of the tutorship receives the revenues of the protected person and uses them for the maintenance and treatment of the person concerned. Any excess amounts are paid into an account which must be opened at an approved deposit institution. Every year s/he must submit accounts to the chief clerk of the magistrate's court.

Appeal

The people previously defined as being permitted to apply for tutorship (including the person him/herself) may appeal to a high court against the judgement, even if they did not intervene at the court proceedings. The appeal must be lodged within 15 days of the judgement’s pronouncement.
The judgment relating to the establishment of tutorship, its modification or cancellation may only be opposed by third parties within two months following its insertion in the margin of the birth certificate of the protected person.

Mandate for future protection (mandate de protection future)

The main innovation of the Law of 5 March 2007 is found in article 477 of the Civil Code which stipulates that any adult or emancipated minor who is not under tutorship may appoint by the same mandate one or several persons to represent him/her, should he or she become incapable of taking care of his/her own interests, for one of the reasons cited in article 425 of the Civil Code.

In other words, the mandate for future protection allows adults to organize in advance not only the future management of their property but also their personal protection, should a time come when they can no longer take care of their own interests.

Conditions for the appointment of a representative

Any adult or emancipated minor not under legal protection can appoint a representative by means of a mandate for future protection, as can any adult under curatorship with the help of the curator.

One or more proxies may be appointed.

Unless the judge decides otherwise, a mandate for future protection cannot coexist with the person’s placement under curatorship or tutorship. It can, however, coexist with a judicial protection measure. The judge may decide to suspend the effects of the mandate during the measure, which would then resume when the judicial protection measure ends.

How mandates for future protection are arranged

Notarized mandates

For a notarized mandate, the proxy must accept his or her appointment in front of a notary.

The notarized mandate can concern acts of conservation (actes de conservation), “preservation acts” (actes d’administration) that allow reasonable management of the principal’s patrimony or “acts of disposal” (actes de disposition), when something should/can be sold.

One limit to this rule is that “acts of disposal” (“à titre gratuit”) must be approved by the guardianship judge.

The proxy must present annual management accounts to the notary who has the task of supervising and verifying the management accounts. S/he must notify the judge of any unjustified activities or movement of funds. The notary conserves the documents presented and the inventory.

Mandates drawn up as a private deed.

A mandate that is drawn up without a notary must be dated and signed by the principal (the person drawing up the mandate) and accepted by the proxy. It must be countersigned by a lawyer or drawn up using a certified form.

There must be as many original copies as there are proxies.

The originals must be signed by the person responsible for supervising the execution of the mandate.

The mandate can only relate to acts of conservation and administration. For all other acts such as acts of disposition and those not covered by the mandate, the proxy must make a request to the guardianship judge for authorization to carry them out.

The proxy must conserve the inventory, its updates and the last five years of annual management accounts along with documents.

Supervision of management is the task of the guardianship judge and the state prosecutor.

In both cases, the mandate for future protection takes effect when the mandate and the detailed medical certificate (less than one month old), presented by the principal, have been verified, stamped and dated by the court registry clerk.

Who can be a proxy/representative

Any person who is legally and morally capable can be appointed representative. The principal is entirely free to choose the representative s/he would like to have (e.g. a friend, lawyer, notary public), but the representative cannot be the guardianship judge or a court registry employee. Similarly, medical or pharmaceutical professionals or assistants are expressly excluded.

The duties and responsibilities of representatives

The principal is free to define the extent of the mandate and its responsibilities. S/he can set down provisions for the management of his/her assets.

Consequences of the mandate for future protection for the person concerned

The protected person does not lose his or her legal capacity and can therefore continue to carry out valid legal acts. The mandate functions as power of attorney given to the proxy.

Nonetheless, acts performed by the protected person during the execution of the mandate for future protection may be rescinded in the case of lesion, or reduced because of excess (lesion refers to excessive inequality in the obligations of each party in a contract).

Measures to protect the principal from misuse of power

As soon as the mandate takes effect (this applies when it is a private deed), the proxy must establish an inventory of the principal’s assets and keep it up to date.

S/he must also establish an annual management account (according to the mandate’s specifications).

The proxy must execute the mandate personally but a third party may be called upon to manage the assets.

One or more proxies may be designated who would then simultaneously share responsibility. This implies that they should keep each other informed.

If there is only one proxy, s/he must present accounts for the protection of both the person and the person’s property.

When the mandate ends, the proxy must be able to produce annual accounts for the last five years, the property inventory and any other document needed to ensure continuity in the management of the person’s property.

Compensation and liability of proxies

In principle, the proxy performs his/her tasks free or charge, but remuneration may be arranged.

The proxy must respect the regulations governing information and consent of the protected person and is not authorized to make “strictly personal” decisions.

If the judge considers that the mandate for future protection is not sufficient to protect the principal, s/he may decide to add another measure (tutorship or curatorship), or allow the proxy to perform one or several acts not covered by the mandate.

Duration of the mandate for future protection

The mandate ends when:

  • the principal regains his or her faculties, as determined by an examination requested by the principal or by the proxy.
  • the principal dies, or is placed under tutorship or curatorship, unless otherwise decided by the guardianship judge.
  • the proxy dies or is placed under guardianship.
  • the guardianship judge revokes the proxy’s appointment.

Capacity in specific domains

Marriage

The person under judicial protection does not require authorization to marry, unless there is a specific clause in the document designating a proxy.

A person who is under curatorship must obtain the consent of the curator in order to marry or, in the absence thereof, that of the guardianship judge.

According to article 460 of the Civil Code, a person under tutorship can marry only with the authorization of the judge or the family council if there is one, after a hearing of both future spouses, and if need be after obtaining the opinions of friends and relatives.

Voting capacity

Adult under judicial protection or under curatorship can exercise all their civic rights.

For the adult under tutorship, maintenance of the right to vote must be specified in the legal decision that establishes or renews the measure. If there is no mention of it, the right to vote is maintained. The Law of 5 March 2007 reinforced voting capacity by making it the default principle for adults under tutorship. They cannot, however, be called to serve on a jury in a criminal court.

Contractual capacity

The legality of business transactions in the case of people who are under any of the three forms of guardianship is determined by the nature of the particular form of protection. In general, a person who is under guardianship is still able to carry out any act except from an act for which the judge designated a mandataire spécial (special proxy).

Mandate for future protection:

The protected person does not lose his or her legal capacity and can therefore continue to carry out valid legal acts. The mandate functions as power of attorney given to the proxy.

Nonetheless, acts performed by the protected person during the execution of the mandate for future protection may be rescinded in the case of lesion, or reduced because of excess (lesion refers to excessive inequality in the obligations of each party in a contract).

Judicial protection:

A person who has been placed under judicial protection by the court retains his/her legal capacity and therefore does not lose the power to exercise his or her rights.

Nevertheless, any civil act or commitment they carry out may be nullified if it is prejudicial to the person or it may be reduced if considered excessive. These acts can be invalidated (i.e. considered null and void due to insanity) by virtue of article 414-1 of the Civil Code. This type of action may only be taken during the person's lifetime by himself/herself and after the person's death by his/her heirs. Such actions must be taken within five years.

To make its decision, the Court takes into consideration the assets of the protected person, the good or bad faith of the other people involved and whether or not the nature of the operation is valid.

Curatorship:

A person who has been placed under curatorship must be assisted when carrying out important acts of civil lide (article 440 of the Civil Code). S/he can carry out such acts but with the assistance or under the control of the curator.

Tutorship:

The person under tutorship is continuously represented by the tutor for any civil act.

Testamentary capacity

A person under curatorship may make a will unless this right is restricted under the provisions of article 901 of the Civil Code which states that in order to make a donation during one's lifetime, or a will, a person must be "of sound mind". A person under curatorship may write a will by him/herself (unless not of sound mind).

A person under tutorship may, with the permission of the judge or the family council if there is one, be helped or if necessary be represented by the tutor to make donations.

However, once tutorship has been established, the person can write a will only if authorized by the judge or the family council; otherwise it would be considered null and void. The tutor cannot assist or represent the person in this case.

Nonetheless, the testator can revoke a will established before or after the tutorship procedure (irrespective of his/her degree of incapacity)
A will made prior to tutorship remains valid unless it can be proved that the reasons for which the testator made the will have disappeared since tutorship was set up.

Civil responsibility

An adult who is under judicial protection, curatorship or tutorship is responsible for misconduct committed voluntarily or involuntarily, as is any individual. S/he must make reparation for any damage s/he causes (article 489-2 of the Civil code). S/he should therefore be covered by personal liability insurance.

Criminal responsibility

In the case of people suffering from mental or neuro-psychiatric disorders, the Law of 5 March 2007 allows for situations in which their criminal responsibility is decreased or even abolished.

Thus, if a person at the time of the crime is suffering from a mental or neuro-psychiatric disorder that eliminates judgement or control over his/her actions, the person is not considered criminally responsible.

However, if the person’s judgement is only altered s/he remains responsible for the acts in question, which are punishable. In this case, the court takes these circumstances into consideration when it determines the sentence.

It should be noted that there is no link between partial or total irresponsibility and a legal protection measure. The medical assessment established when the judge examines the case will allow the perpetrator’s responsibility to be ascertained at the time of the crime.

The Law of 5 March 2007 contains several innovative aspects, namely that the tutor or the curator of a person who has committed a criminal act is kept informed of the legal process. S/he has the same right as the plaintiff to consult the documents in the file. S/he also has the automatic right to visit the protected person who is in temporary custody.

 

 
 

Last Updated: mardi 27 mars 2012

 

 
  • Acknowledgements

    The above information was published in the 2011 Dementia in Europe Yearbook as part of Alzheimer Europe's 2010 Work Plan which received funding from the European Union in the framework of the Health Programme. AE also gratefully acknowledges the support it received from Fondation Médéric Alzheimer for its project on legal capacity and proxy decision making in dementia
  • European Union
  • Fondation Médéric Alzheimer
 
 

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