Guardianship : definition
Guardianship is one of the three protection measures for adults , with curatorship and court protection. It is more restrictive than curatorship. It aims to protect a person and/or their assets if they can no longer look after their interests. The guardian represents the latter in all acts of civil life. This is the reason why placing under guardianship concerns only people who have lost a large part of their autonomy. If you want to set one up for one of your relatives, this article allows you to understand all the challenges of guardianship.
What is the use of guardianship?
Guardianship aims to protect an adult when they can no longer look after their own interests. It is aimed at people who have lost their autonomy and are in a situation of great vulnerability.
Through the placement under guardianship, one or more guardians are in charge of continuously representing the protected person in daily life actions. Nevertheless, he must always inform the latter of the actions which are carried out and report the management to the protection litigation judge.
As a guardian for example, you perform all daily life actions of the protected person such as the management of his resources and expenses, rounding off of a lease , etc.
Nevertheless, if the abilities of the protected adult allow so, he can retain to carry out small purchases of daily life.
Let’s imagine that your parent is placed under guardianship because of a loss of autonomy, it is only customary that he can still carry out some actions like going to buy bed.
On the other hand, the authorization of the protection litigation judge is obligatory to carry out acts of disposal, which means acts concerning assets .
Suppose you are the guardian of one of your parents, if you want to sell any of their real estate you will need to get permission from the judge or the family council.
The judge’s authorization is also required to establish the will of the person under guardianship or if the person under guardianship wants to consent to a donation , but also for decisions on his main accommodation, etc..
How is a guardianship set up?
If you want to place one of your relatives under legal protection, you need to stick to a strict procedure.
The application for placement under guardianship can be made by:
- the adult who needs to be protected,
- his or her spouse, civil union partner or cohabiting partner (unless the living community has ceased),
- his descendants, ascendants, brothers or sisters,
- his entourage,
- the person who already seems to apply the legal protection measure, in the event of guardianship or protection,
- the public prosecutor.
It should be noted: Social or medical services can seize the public prosecutor.
You must also set an appointment with an approved doctor so that he can draw up a medical certificate which gives details on the situation of the person who needs to be protected.
Following which, the guardianship application must be sent or delivered to the registry of the district court, of the place of residence for the protected person.
This must contain:
- the request cerfa form n°15891*03,
- the birth certificate and the ID of the person who needs to be protected,
- the medical certificate.
Other documents may also be required such as:
- proof of family relationship between the applicant and the person to be protected,
- the identity copy and the copy of residence of the person seeking family authorization to be a tutor,
- letters from family members who accept the appointment,
- documents on the situation of the person who needs to be protected: the composition of his family, his living conditions, his social environment, his heritage, his autonomy, etc...
The protection litigation judge can hear the person who needs to be protected, but also his relatives or his doctor. Moreover, he can request expert consultations or a social survey.
Pending judgment, the person to be protected may be placed under the court’s protection.
It should be noted: Using a lawyer is not compulsory.
Once the investigation has been completed, the judge passes on the file to the public prosecutor. A hearing is then organized with the person who needs to be protected, the applicant and their possible lawyers.
The judge then pronounces his decision.
- placement under guardianship,
- refusal to put under guardianship,
- the choice of another legal protection measure.
If he has accepted the guardianship, he can form a family council of 4 to 6 members. The family council is mainly made up of family members, but friends or other relatives can be appointed as well. The protection litigation judge chairs the council.
The judge also appoints one or more guardians. The guardian is often a family member. If this is not possible, it is possible to call upon a professional guardian, legal representative for the protection of adults..
If several guardians are appointed, one may be responsible for the protection of the person and another for the management of his/her assets .
It is also possible to appoint a subrogated guardian to supervise the acts of the guardian or to replace him in the case of a conflict of interest. Instead of a subrogate, an ad hoc guardian can be appointed.
An appeal against the judge's decision can be lodged by the protected adult or by the applicant, within 15 days of the judgment or on the date of notification.
Relatives of the person who need to be protected, the subrogated guardian or a third party can take action with the protection litigation judge if they suspect that the guardian is not respecting his duties or if he portrays serious breaches.
Who does the guardianship apply to?
The placement under guardianship can concern a minor but also an adult. However, this document only contains developments which concern the supervision of adults.
Guardianship for adults
Most of the time, the placement under guardianship concerns adults, especially the elderly.
The people who can be subject to a guardianship are those people who require to be represented on a daily basis because of:
- impairment of their mental faculties,
- disability or weakness due to age,
- a physical inability to express their will ,
- general condition.
Let’s imagine that your parent isn’t self-sufficient anymore because of his age and that he can no longer ensure his own protection, you may wish to help him by requesting a placement under guardianship .
What is the duration of a guardianship?
The duration of the guardianship is 5 years or 10 years if the condition of the person to be protected cannot improve.
Let’s imagine that your parent is experiencing a deterioration in terms of mental faculties without any hope for improvement, the judge has the choice to pronounce the decision of placing the latter under guardianship, for a period of 10 years.
The protection litigation judge can renew the measure directly if the medical certificate which was produced during the last renewal pointed out that the adult’s state of health remains unchanged. This renewal must not exceed 20 years.
The protection litigation judge also has the option of reducing the measure at any given time.
Moreover, it ends if:
- it is no longer necessary, at the request of the adult or any authorized person,
- at the end of the set period if no renewal has been requested,
- in the event of replacement through a curatorship,
- on the death of the protected person.
What are the specificities of strengthened supervision ?
There is no real reinforced supervision, but personalized supervision on a case-per-case basis.
When the person who needs to be protected is no longer autonomous, the protection litigation judge strengthens the guardianship and the powers of the guardian.