Curatorship is a system for the protection of adults that is less restrictive than the guardianship.
Articles 467 paragraph 1 and 504 of the Civil Code specify that a person benefiting from a curatorship measure can perform alone the conservatory and administrative acts necessary for the management of his property.
Curatorship is a regime particularly suited to people whose interests are endangered by an unscrupulous entourage and / or likely to squander the heritage of a vulnerable and / or easily influenced adult. The adult is able to take the decisions which concern him personally, but for his protection he will be assisted to carry out the acts likely to encumber his patrimony.
There are three forms of curatorship: simple curatorship and reinforced curatorship
The protected person must be assisted by their curator for all acts of provisions, that is to say those which encumber its patrimony (sale of a good, mortgage…). This means that to carry out these acts the signature of the curator must be affixed next to that of the adult to be validly concluded.
Simple curatorship leaves the person of full age with a great deal of leeway in carrying out routine management acts.
However, article 468 of the Civil Code specifies that the capital due to the person under guardianship is paid directly into an account in the name of the protected adult on which the existence of a protection regime is mentioned.
This measure is suitable for people with a medically observed deterioration in their personal faculties who cannot ensure their day-to-day management (systematic forgetting to pay the rent, squandering of their income, etc.).
Under this regime, the funds and the management of the income of the protected adult will be entrusted to the curator (article 472 of the civil code).
Therefore, the room for maneuver of the adult will be much more limited because the curator will be able to act alone and:
- collect the income of the adult deposited in an account (opened in the name of the adult)
- pay all expenses related to current charges
Once everything is paid (current charges, reimbursement of debts, etc.), if there is an amount left in the account of the adult, it can be made available to him.
In principle, the protected person can choose their accommodation alone (article 459-2 of the civil code), but in the event of difficulties, the curator may ask the guardianship judge to authorize him to sign a lease alone in the interest of the adult. .
It is up to the appointed curator to make an inventory of the property of the person of full age as soon as he is appointed and to make an annual management account.
The guardianship judge can modify the guardianship at any time, that is to say modify it by worsening or reducing it: It is a transitional period regime.
He may either authorize the protected person to perform acts alone when he had to be assisted or, on the contrary, submit their exercise to the assistance of the curator when the adult could do them alone.
If the measure is worsened, the whole procedure will have to be resumed with a medical certificate, the hearing of the adult and the curator… to consider going into tutorship.
The guardianship judge will have to enumerate with precision all the acts that the adult can or cannot do alone.
Conditions for opening a curatorship
Like any system of protection, the conditions of necessity and proportionality must be met.
However, article 425 of the Civil Code adds two cumulative conditions for the opening of a curatorship for which it is necessary:
- The existence of a medically established alteration of personal faculties which prevents the person concerned from providing for his or her interests alone
- Determine if the person only needs assistance or control of their actions
The appointment of the curator
The judge must designate a person responsible for managing the measure who will be chosen as a priority among relatives (spouse, partner, PACS partner), then in close entourage, family and failing that appoint a legal representative for the protection of adults (MJPM).
The judge can appoint two curators and entrust to one the personal interests and to the other the pecuniary interests of the protected adult (article 447 paragraph 2 of the civil code).
The co-curators carry out their duties independently and are therefore only responsible for their actions. They must, however, keep themselves informed throughout the measure (article 447 of the Civil Code).
If the curator refuses to assist the adult when his assistance is required for the validity of the act, the adult may apply to the guardianship judge in order to be authorized to perform the act alone.
The subrogated curator
According to article 454 of the Civil Code, its role is to monitor the acts passed by the curator (or the co-curators) and to warn the guardianship judge if the curator ceases to exercise his functions or of any anomalies noted. .
He must be informed of all serious acts contemplated by the curator.
It has a function of management and approval of the accounts: The curator must send to the subrogated curator all the accounts and all the supporting documents before sending them to the chief clerk of the District Court for their verifications.
He intervenes whenever the interests of the curator and the protected person are in conflict. If such conflicts arise during the measurement, the guardianship judge may ex officio at the request of the adult or the public prosecutor, appoint an ad hoc subrogated curator.
The duration and renewal of the measure
The measures have a duration which cannot exceed 5 years (article 441 of the civil code).
They must be revised by the guardianship judge after 5 years, at the end of which the judge can renew the measure for a new period of 5 years. In the absence of a review, the measure will end automatically.
The judge can at any time suspend, modify (moving to a guardianship if the condition of the adult worsens) or terminate the measure.
If the measure is to be aggravated, it will be necessary to follow the referral procedure to the guardianship judge with the filing of a request, a detailed medical certificate ... That is to say, start all over from the beginning.
If the measure is lightened or stopped, the judge will have to hear the protected adult and the curator. A medical certificate from the attending physician will be sufficient, he must specify the degree of deterioration, the evolution of the person's condition, if he can exercise his right to vote ...
Article 425 of the Civil Code does not provide for the obligation in this case to notify the public prosecutor.
Publicity of the decision
Any decision of the guardianship judge (opening, modification, show of hands, etc.) is publicized.
The secretariat-registry sends an extract of the decision to the secretariat-registry of the TGI of the place of birth of the protected person or to the central civil status service of Nantes for people born abroad, so that it is mentioned in the civil directory.
The birth certificate of the protected adult will be marked "RC" (Civil Directory) with a number corresponding to the extract of the decision kept in the civil register of the TGI of the place of birth.
The end of the measure
The measure ends if it is not renewed, with the death of the protected person, or by release from the guardianship judge.
Note: When it ends, the measure is not automatically withdrawn from the Civil Register and from the birth certificate. To remove the mention, you must contact the registry office who will notify the registry of the TGI within the jurisdiction of the place of birth of the protected person so that it can cancel the measure from the RC (article 1233 of the Code of Civil Procedure) .
The liability regime
Article 421 of the Civil Code establishes the principle that “All the bodies responsible for the judicial protection measure are liable for damage resulting from any fault they commit in the exercise of their function”.
The curator and the surrogate curator who during a simple curatorship (simple assistance of acts done by the adult) commit a fault will engage their responsibility only in the event of fraud (fraud) or gross negligence (article 421 of the code civil).
Article 423 of the Civil Code specifies that the action for liability is prescribed within 5 years from the end of the assignment.
According to article 422 of the Civil Code, when the fault was committed in the organization and operation of the protective measure by the guardianship judge, the chief clerk of the district court or the clerk ”, the action of an adult or his heirs must be brought against the State.
In the event of damage or fault linked in particular to the malfunction of the service, it will therefore be necessary to refer to the administrative court to obtain compensation.
Damage caused by a protected adult under the influence of a mental disorder
Article 414-3 of the Civil Code provides that "anyone who has caused damage to others while under the influence of a mental disorder is nonetheless subject to compensation".
The protected adult may see his contractual, tort and quasi-tort liability raised whenever his acts cause damage.