2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
Pursuant to Article 489 of the Belgian Civil Code, an adult suffering from a continuing state of insanity can be declared “legally incapable” by court order. From a legal point of view, this means that the person loses the legal rights of an adult person, and only has the rights of a minor. All legal acts carried out by the person after the date of the court order are null and void. A guardian (“tuteur”) and a substitute guardian (“subrogé de tuteur”) are appointed to manage the person’s affairs. If the causes that resulted in the loss of the legal capacity cease at any time, the court may order that the person regain his/her full legal capacity. The procedure for obtaining court order of loss of legal capacity pursuant to Article 489 is long and involved, and psychiatric reports must be obtained. The court application can only be made by a relation who is a potential heir, or by the spouse, or failing both of these, by the Attorney General. Given the radical consequences of a declaration of insanity and legal incapacity pursuant to Article 489 the Belgian legislator perceived the need for a more flexible regime – a regime that was adopted by the law of 18 July 1991 inserting a new Article 488 bis in the Belgian Civil Code.
If, upon hearing an application for a declaration of legal incapacity the court finds that the conditions for an order of legal incapacity are not satisfied, but that the person concerned has diminished mental facilities that prevent him/her from managing his/her assets, it may decide to appoint a counsellor (“conseil judiciaire”/“raadsman”) to assist the person concerned for certain acts (Article 1247 of the Belgian Judicial Code). As a result, the person concerned is legally incapable of accomplishing the following legal acts without the intervention of his/her counsellor: bringing or defending court proceedings, settling disputes, borrowing, receiving a capital sum (and signing for receipt thereof), disposal of assets by gift or contract, and taking out a mortgage on his//her assets. This alternative, which is provided by Article 1247 of the Belgian Judicial Code, has lost much of its utility now that it is possible to appoint a provisional administrator pursuant to Article 488 bis of the Civil Code.
Article 513 of the Belgian Civil Code provides a regime which is designed to protect one spouse against the prodigality or weakness of mind of the other spouse. If a married person demonstrates an inability to manage the joint property as well as his/her own property, or presents a danger for the family interest, the other spouse may apply to the court to have the powers of management withdrawn and conferred on the petitioning spouse or on a third party. A defect of this regime is that there is no legal supervision of the management by the petitioning spouse, as is the case when a provisional administrator is appointed pursuant to Article 488 bis.
In the light of these considerations, this chapter will concentrate on the regime for the appointment of a provisional administrator pursuant to Article 488 bis of the Belgian Civil Code, which in most cases will be more appropriate for persons with Alzheimer’s That being said, it should be emphasised that Belgian law does not define Alzheimer’s as constituting any particular form of disability per se. It will depend on the individual’s condition as evidenced by medical reports in each case, whether or not the conditions are satisfied for the appointment of a provisional administrator, etc.
Proxy decision making
Since the reform introduced by the law of 18 July 1991, by far the most common form of guardianship for persons having difficulty in managing their affairs is under the regime provided for by Article 488bis of the Belgian Civil Code. As observed by Nicole Delpérée in her authoritative guide on the subject, this Article does not deal with personal rights (e.g. the right to marry, write a will and make a donation) and there is no protection of the person (e.g. decision on care, choice of the place of residence, etc.).
Conditions for the appointment of a provisional administrator
Pursuant to Article 488bis of the Belgian Civil Code, the conditions for appointing a provisional administrator (“administrateur provisoire” / “voorlopige bewindwoerder”) are as follows:
"A person of full age who, due to his or her state of health, is completely or partially incapable of managing his or her property, even temporarily, may for the purpose of protecting the said property, be assigned a provisional administrator, when he or she is not already assigned a legal representative."
How is the appointment of a provisional administrator arranged
The person concerned (“the protected person”) or any other person interested may request that a provisional administrator be assigned by the Justice of the Peace. The Justice of the Peace may also take this measure as a matter of course when a petition has been made to place the person under observation.
The petition must be supported by a medical certificate. The Justice of the Peace then collects all the necessary information and designates an expert doctor to give an opinion on the state of health of the person concerned. The person and his/her spouse or parents are summoned to court and are heard, if required in the presence of their lawyer. The Justice of the Peace may also decide to visit the person in his/her home, if necessary.
The tasks of a provisional administrator will come to an end if a legal representative is named in the event of the protected person being disqualified from accomplishing certain legal acts – See Issues Surrounding the Loss of Legal Capacity above.
Who can be appointed provisional administrator?
The Justice of the Peace usually appoints the spouse or partner, a member of the immediate family or if necessary a person in whom the person to be protected has confidence. Within 15 days the clerk of the court publishes details of the provisional administrator in the Moniteur Belge/Belgisch Staatsblad. Any modification to or revocation of the powers of the provisional administrator must also be published. The provisional administrator must be informed that s/he has been appointed within three days of the decision and must reply in writing within eight days stating whether s/he accepts the appointment.
The duties and responsibilities of provisional administrators
A provisional administrator has the duty of managing the property of the protected person. S/he must do this diligently with the same care as s/he would exercise over his/her own affairs. The Justice of the Peace defines the extent of the powers of the provisional administrator, taking into account the nature and the composition of the property to be managed and the state of health of the protected person.
In fulfilling his/her duties, the provisional administrator may obtain assistance from one or more persons acting under his/ her responsibility.
The provisional administrator is responsible for controlling the living and treatment expenses of the protected person and must place at his/her disposal the necessary amount to ensure the improvement of his/her situation. In addition, s/he is required to ensure that social legislation in favour of the protected person is applied correctly.
Measures to prevent misuse of power by the provisional administrator
If the interests of the provisional administrator are in conflict with those of the protected person, s/he must obtain special authorisation from the Justice of the Peace. In addition, certain restrictions may be imposed on him/her. Specific authorisation must be obtained from the Justice of the Peace to do any of the following:
- represent the protected person in court as petitioner in certain procedures and legal acts;
- alienate his/her movable or immovable property;
- borrow and consent to a mortgage;
- consent to any request concerning real estate property rights;
- reject an inheritance, or accept it on condition that the debts do not exceed the value of the assets;
- accept a donation or receive a legacy;
- grant an agricultural or commercial lease;
- reach a compromise or settle any claim made by or against the protected person.
Apart from the cases where a provisional administrator is obliged to obtain specific authorisation from the Justice of the Peace, there are various reporting requirements designed to protect the patient against misuse of powers. For example:
- Within one month of being appointed, the provisional administrator must make a report concerning the nature and composition of the property to be managed and transmit it to the Justice of the Peace and to the protected person.
- Every year, and also at the end of his/her mandate, the provisional administrator must submit his/her accounts to the Justice of the Peace and the protected person.
- The provisional administrator is obliged to inform the protected person of any legal acts carried out on his/her behalf.
Protection of the protected person's dwelling and furniture
The dwelling of the protected person and his or her furniture must remain at his/her disposal as long as possible. However, if it becomes necessary - or if it is in the interests of the protected person - to dispose of them (e.g. in the event of hospitalisation or long term institutionalisation) special authorisation from the Justice of the Peace is required. Nevertheless, souvenirs and other objects of a personal nature must be kept at the disposal of the protected person.
Provisions for the sale of real estate
If it is considered to be in the interests of the protected person, his/her real property may be disposed of by public sale. This must be carried out in the presence of the provisional administrator before the Justice of the Peace of the canton in which the property is located. The provisional administrator may request authorisation of sale by private contract if this is in the interests of the protected person. In this case the Justice of the Peace must explain the justification for a private sale under his/her authorisation.
Remuneration and liability of provisional administrators
The Justice of the Peace may arrange for the provisional administrator to be paid for his/her services. In such cases the amount of such payment cannot exceed three percent of the protected person’s total income. In addition, the Justice of the Peace may arrange for the provisional administrator to be paid for exceptional duties performed by him/her.
Duration of the measure
In principle a provisional administrator is appointed for an indefinite period, but s/he is obliged to submit an annual report on his/her management of the protected person’s affairs The appointment of the provisional administrator may be revoked by the court and a new administrator appointed upon the petition of any person having an interest.
The right to appeal
A right of appeal exists from the decision of the Justice of the Peace to the Court of First Instance. The Court of First Instance (“Tribunal de première instance”/“Rechtbank van eerste aanleg”) has jurisdiction to reconsider the matter de novo, that is to say, to re-examine both the facts and the law. From the Court of First Instance there is an appeal to the Supreme Court (“Cour de Cassation”/“Hof van Cassatie”) but only on a point of law.
Powers of attorney
Conditions for making a power of attorney
A power of attorney or mandate is an authorization to act on someone else's behalf in a legal or business matter. The attorney-in-fact is a fiduciary for the principal, meaning that s/he must be completely honest with, and loyal to, the principal in his/her dealings with the principal. It is possible to grant a “springing” or contingent power of attorney i.e. a power of attorney that only enters into force after some other defined future act or circumstance, but care should be exercised in specifying exactly how and when the power springs into effect. This may be used to allow a spouse or family member to manage the grantor's affairs once illness or injury renders the grantor physically incapable of acting. However, once an order of incapacity is made pursuant to Article 489 of the Belgian Civil Code, or a provisional administrator is appointed pursuant to Article 488 bis, all powers of attorney granted by the protected person cease to have effect.
How powers of attorney are arranged
If the attorney is being paid to act for the principal, the contract is usually separate from the power of attorney itself. If such contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people. However, a power of attorney may be verbal as well. For some purposes, the law requires a power of attorney to be in writing, notably in the case for the transfer or acquisition of real estate.
A power of attorney may be special or limited to one specified act or type of act, or it may be general. It can also be limited in time. People with mental illness can prepare so-called psychiatric advance directives. These directives are powers of attorney that enable a patient to dictate his/her preferences for care before becoming wholly incapacitated through mental illness.
Duration and revocation of powers of attorney
Unless the power of attorney is expressed to be irrevocable, the grantor may revoke it at any time by simply telling the attorney-in-fact that it is revoked. It is also advisable to inform third parties. If the principal does not inform third parties and it is reasonable for the third parties to believe that the power of attorney is still in force, the principal may continue to be bound by the acts of the agent falling within the scope of the power of attorney. As observed above, once a declaration of loss of legal capacity is made pursuant to Article 489 of the Belgian Civil Code, or a provisional administrator is appointed pursuant to Article 488 bis, the power of attorney granted by the protected person ceases.
Capacity in specific domains
Marriage and divorce
In general, and as far as the person concerned has not lost his legal capacity as provided by Article 489 of the Belgian Civil Code, a person remains free to marry and/or divorce. However, once a provisional administrator has been appointed, the permission of the Justice of the Peace is required for the conclusion of a marriage settlement concerning assets in the patient’s estate.
As long as a person has not lost his legal capacity, s/he retains the capacity to vote in governmental and local elections. Should it be practically impossible for the person concerned to go to the polling station, s/he can grant a power of attorney to someone else to vote on his/her behalf.
As long as the person concerned has not lost his legal capacity, s/he retains the capacity to contract. However, once a provisional administrator has been appointed, the assistance of the latter may be required in certain cases. The court order appointing the provisional administrator usually describes all the acts for which the assistance of the provisional administrator is required.
All legal acts performed by the protected person but over which a provisional administrator had authority are null and void. Nullity may only be requested by the protected person or his/her provisional administrator. The request must be made within five years of the relevant act.
As long as a person has not lost his/her legal capacity, s/he retains the capacity to dispose of his/her goods by will and/or by gift. However, once a provisional administrator has been appointed, assistance of the latter will normally be needed. The court order appointing the provisional administrator will usually designate the acts for which the assistance of the provisional administrator is required.
In general, a person who commits a tort is liable and must therefore pay compensation for any damage incurred. However, pursuant to Article 1386bis of the Belgian Civil Code, the court can rule that a person in a state of madness , serious mental imbalance or debility shall be held liable for all or part of the damage for which s/he could have been held liable if of full mind. In so doing, the Court must consider what is just having regard for the circumstances and situation of the parties. Thus compensation can be claimed from a person who commits a tort, even if that person has Alzheimer’s disease. It is therefore advisable for such person to take out civil liability insurance (if necessary, through his/her provisional administrator).
In general, a person who commits a criminal act will be held criminally liable. However, pursuant to Article 71 of the Belgian Criminal Code, there is no crime when at the moment of the offence the offender was in a state of insanity. Depending on the qualification of the act by the judge, people with Alzheimer’s disease may escape criminal liability on the basis of Article 71 of the Belgian Criminal Code. However, this does not exempt them from civil liability (see above).
Last Updated: Tuesday 27 March 2012