Judicial authorization for spousal representation

Judicial authorization may be requested from the judge if a spouse is unable to manifest will :

• Temporary or permanent impairment of mental or physical faculties (e.g. Alzheimer's disease)
• Disappearance / absence
• Hospitalization
• Incarceration.

In this case, the other spouse may be authorized by the guardianship judge to act in his name and on his behalf, in the interest of the family.

Judicial authorization may be general or for certain specific acts. It makes it possible to perform one or more acts of layout (e.g. the sale of property) or of administration (e.g. renting a property).

Only the married couples may engage a judicial authorization procedure for spousal representation. It can be requested regardless of the matrimonial regime.

If the conditions are met, the judge must always prefer this measure to a judicial protection measure or representation of the absent person.

The request can be made using a form or on free paper.

The file must be transmitted to the guardianship judge of the court.

The competent court shall be the court of the place where the spouse is unable to manifest his will.

The judge hears in the council chamber (without public) the spouses and any other person he considers necessary to hear (child, parents, brother or sister...).

The spouse to be represented shall not be heard if it is stated in the medical certificate that his hearing is impossible or not advisable.

The hearing may take place in the court, place of residence or in the host institution of the spouse to be represented.

The judge may, at his or her request or that of the spouse applying for judicial authorization, order any measure of instruction.

The judge shall ensure that the application safeguard the common interest of the spouses and makes it possible to arrange for the replacement of the sick or absent spouse by the other.

It sets out the conditions and scope of judicial authorization. It defines the transactions to be carried out (sale of a property, financial investment, etc.) and the duration of the judicial authorization. When the judge's decision does not mention anything, the judicial authorization does not only on the acts of administration.

The decision is notified spouses and third parties whose interests may be affected by the decision (e.g. creditor) by registered letter with acknowledgement of receipt. Sometimes, the spouse is not notified if this information is likely to harm his or her health.

As soon as the decision is handed down, the judge is removed from the case and does not have to follow up on the actions of the authorized spouse.

It is possible to appeal by declaration or registered letter with acknowledgement of receipt to the registry of the court that issued the decision.

The time limit is 15 days following the date of its notification.

All parties to whom the judgment has been served may appeal.

The duration is set by the judgedepending on the situation of the spouse represented and the nature of the acts to be performed.

A special authorization shall terminate automatically as soon as the act or acts are performed.

A general authorization is fixed for a period determined by the judge (a few months to several years).

The authorized spouse replaces his or her spouse and acts on his behalf and on his behalf in the interest of the family, as determined by the judge.

Judicial authorization may be general or may only cover certain areas acts of disposition or of administration. The authorized spouse can thus, for example, sign a deed of sale, manage a bank account opened solely in the name of the spouse prevented, choose the family home, terminate a lease, borrow... etc. It may also carry out a procedure where the consent of the spouse prevented is necessary (relinquish or accept an estate).

Each time he wishes to perform an act, he must justify his judicial authorization.

Whatever the matrimonial regime, the acts performed by the authorized spouse shall be performed on behalf of and for the husband prevented. The latter is bound by the acts performed by the representative spouse.

If the authorized spouse does not properly manage the property of his or her incapacitated spouse, he or she responsibility.

Judicial authorization may be interrupted or reviewed in one the following cases:

• At its expiry (when the act is passed or according to the duration fixed by the judge)

• In the event of an improvement in the state of health of the spouse represented

• In the event of the death of either spouse

• By decision of the judge on reasoned request.

The procedure is free of charge.