Guardianship of an adult

1Detailed medical certificate

The state of the faculties of the person to be protected must first be established by a licensed physician by the Public Prosecutor.

The detailed medical certificate of the approved physician is mandatory otherwise the application is inadmissible.

2Preparation and filing of the application

The applicant may use the application form for legal protection of an adult to make his request.

The request must be accompanied by the following documents:

• Detailed medical certificate
• Full copy of the birth certificate of the person to be protected
• Copy (double-sided) of the identity document of the person to be protected
• Copy (double-sided) of the identity document of the person making the request
• Documents or information, including to the knowledge of the applicant, about the personal and financial situation of the person to be protected.

The application shall be forwarded to the guardianship judge of the local court or court of justice of the place of residence of the person to be protected.

3Hearings

Hearing of the person to be protected

THEpre-hearing of the person to be protected is mandatory.

On the advice of the certified physician, the judge may decide to do not audition the person to be protected. This is the case if the patient cannot express his or her will or if hearing can harm his or her health.

The hearing takes place in court.

The hearing is not public.

The judge can move the place of habitual residence of the adult to be protected (home, retirement home) or any other place (hospital).

If he considers it useful, the judge may proceed to this hearing in the presence of the attending physician or any other person.

For his hearing, the person to be protected has right to legal assistance. She can choose her lawyer or ask a public defender.

At the end of this hearing, a report is drawn up.

Hearing of other persons

The person who requests to exercise the guardian functions is automatically heard.

Relatives of the person to be protected shall be heard if the judge considers it useful to hear them.

The judge may also obtain the opinion of family members by sending them a questionnaire.

The judge may also hear the public prosecutor to get his opinion. In practice, the prosecutor press release its opinion in writing.

Consultation of the file and issuance of copies

Until judgment is pronounced, the file may be consulted at the Registry by the applicant.

They may also be consulted by the Civil partnership's spouse, partner, common-law partner, relative, partner or close relation to the person in need of protection on the authorization of the judge.

At any time during the procedure, the file may be consulted at the registry of the court on written request by the adult to be protected or protected, his lawyer and by the person or persons responsible for protection. The lawyer of the adult to be protected or protected may also request a copy of the documents in the file. He has no right to communicate them to the protected adult or to protect or to a third party.

4Decision of the guardianship judge

The decision of the guardianship judge must be taken in the year in which the application was submitted of opening the guardianship, otherwise the request is obsolete (the whole procedure has to be repeated).

After studying the file and the hearings, a hearing is fixed. It is at the end of this hearing that the judge makes his decision.

The judgment is pronounced on the same day hearing or postponed on another date. In this case, the parties are informed of the date on which the judgment will be rendered.

The guardianship judge makes his decision taking into account the elements of the file (hearings, medical certificate...) and the degree of impairment of the faculties of the adult. It shall decide on the following:

• Whether or not a protective measure is in place
• Nature of the measure (safeguarding of justice, guardianship, guardianship)
• Duration of the measure
• Degree of assistance or protection
• Person providing protection.

When the the decision to place the person under guardianship is final, an extract of the latter is transmitted to the judicial court of the place of birth of the protected person.

He is kept at the registry and registered on the civil directory.

The registry of the court shall cause the birth certificate endorsement (OR) indicating that there is an enrollment in civil directory and the reference of it.

For the guardian

The guardian represents the protected major in all acts of his civil life, in particular in the management of his assets and if the judgment so provides concerning his person.

In the field of wealth management

We have to distinguish between acts of heritage administration and acts of disposition.

The guardian may perform administrative acts alone, i.e. acts of routine management the assets of the protected person.

In particular, he may open a booklet in the bank of the person to be protected, close an account opened after the declaration of guardianship and reinvest these sums in another account, invest funds in an investment account.

He rule current expenses and debts of the protected person.

He can subscribe insurance, enter into a lease, take out insurance or a mutual.

Acts of provisions are acts having a impact on the composition of assets of the person to be protected. For example: renouncing an estate, accepting an estate division, selling property, taking out a loan, taking out or modifying life insurance.

For these acts, the guardian must seek authorization the guardianship judge.

Acts concerning the person of the protected adult

The guardian organizes daily life of the protected person (organization of home help, carrying of meals...))

It makes decisions in the field of medical care. It ensures that the protected person receives the necessary medical care and benefits from a living environment adapted to his needs.

He accompanies him in the administrative procedures.

For the protected person

The person under guardianship retains rights.

Respect for individual freedoms and civil rights

The person under guardianship exercises personally his right to vote.

Freedom of personal relations

The adult under guardianship may maintain personal relationships freely with any third party, parent or not.

It has the right to be visited and hosted by them.

Right to information

The protected person has right to clear, understandable and adequate information on:

• the procedure for placing under protection,
• the grounds and content of the measure
• the content and manner in which he may exercise his rights during the implementation of the guardianship procedure
• the role of the guardian.

It is also informed of the means of complaint andamicable and judicial remedies.

It has access to information concerning it, where appropriate, according to rules set by the judge.

Right to autonomy

The adult under guardianship alone makes decisions concerning his person insofar as its condition permits.

The protected person performs certain strictly personal acts alone to the extent that it is able to give its consent:

• Declare the birth of a child
• Recognize a child
• Perform acts of parental authority relating to the person of the child
• Declare the choice or change of name of a child,
• Give consent to their own adoption or to the adoption of their child.

She chooses the place of residence.

The protected person may enter into a civil partnership without the permission of the guardian or judge.

It may also getting married after informing his guardian.

For divorce, the protected person is represented by his guardian.

She can accept the principle of marriage breakdown alone. But she may not divorce by mutual consent.

The protected person can make his will alone if it has obtained the prior authorization of the guardianship judge. The guardian may not assist or represent him.

Health rights

The person under guardianship shall receive information necessary for decision-making concerning health or medico-social and social care.

She personally consents to these decisions if she is able to do so. She may be assisted by her guardian.

The guardian may consent in the place of the protected person only if he has power of representation in matters of personal decisions.

For third parties

The decision to place an adult under guardianship is enforceable against third parties 2 months after the mention of the measure has been placed in the margin of the birth certificate of the protected adult.

Release of the measure

In the event of an improvement in the condition of the protected person, the protected person or a relative of the protected person may apply to the judge for request for release of the measure.

The request for release must be accompanied by a detailed medical certificate from the attending physician.

It is done using the following cerfa form:

Application to the guardianship judge - Reconsideration of a judicial protection measure of an adult

The application must be sent or filed at the reception of the court or near the place of residence of the protected adult or the home of the guardian

Replacement by another protective measure

When the condition of the protected person has improved, the judge may lighten the measure and replace guardianship with another protective measure, such as a guardianship.

The request may be made by the protected person or any interested party. It is necessary to produce a detailed medical certificate from the attending physician of the protected person.

It is done using the following cerfa form:

Application to the guardianship judge - Reconsideration of a judicial protection measure of an adult

The application must be sent or filed at the reception of the judicial court or near the place of residence of the protected adult or the home of the guardian.

No renewal at maturity

Failure to comply with the obligation to revise the measure by the set deadline automatically causes the measurement to be lifted.

Residence abroad

Where the protected person resides outside the national territory and such removal prevents any monitoring and control, the judge may take a decision terminating guardianship.

Deaths

In the event of the death of the protected person, the guardian's mission ends immediately and his succession opens.