The safeguard of justice is a transitional protection regime that is strictly limited in duration.
There are actually 3 distinct forms of safeguarding justice: A safeguarding of medical justice, and two safeguarding of judicial justice.
Safeguarding medical justice
This is the hypothesis provided for in articles 434 of the civil code and L.3211-6 of the public health code according to which a doctor is required to make a declaration to the prosecutor if he finds that his patient is suffering from an "alteration of mental faculties or bodily faculties such as to prevent the expression of his will "
The condition for making this report is that the person must be incapable of providing for their own interests (Article 425 of the Civil Code).
This declaration is optional if the person is not hospitalized. The doctor has a power of appreciation which cannot be called into question. If he decides otherwise, for the adult to be placed under judicial protection, the doctor must attach to his declaration the assent of a psychiatrist (L.3211-6 of the public health code).
If the person were hospitalized in a public or private establishment specializing in mental disorders when the doctor discovered the alteration of his mental faculties, he would in this case have the obligation to make a declaration to the public prosecutor of the place of treatment. The latter will have to refer the matter to the prosecutor of the place of residence of the adult who will refer the matter to the guardianship judge.
This declaration will be enough to open a safeguard of justice.
Safeguards of judicial justice
The safeguard of justice established during the opening of a protection regime
When the guardianship judge is seized of an application for protective supervision, the judgment will not be rendered until much later after an investigation, without however exceeding one year. In the meantime, it is advisable to protect the adult for all past acts by placing him under the safeguard of justice.
The decision, transmitted to the public prosecutor, is not subject to appeal (it is an act of judicial administration).
The safeguard of “punctual” or “renewed” justice
This safeguard is an innovation of the 2007 law which reforms the regime for protected adults.
This is a one-off judicial protection allowing a person whose faculties are altered to be represented in a specific framework. It can be an act relating to his personal life or his patrimonial interests (sale of a good…). In this case, rather than opening a guardianship with a family council or a guardianship, the protected adult will be subject to legal protection and will therefore be sufficiently protected just long enough to perform the act.
Following the procedure before the guardianship judge, a detailed medical certificate will be required by an authorized doctor appearing on an annual list drawn up by the public prosecutor.
Specific features of the safeguarding of justice regime
The person placed under safeguard has all their civil, civic and political rights and will not need to be assisted or represented to exercise their rights.
The advantage of this regime is that it protects the person a posteriori:
- It offers the possibility of reconsidering acts passed to its detriment which could be annulled (article 414-1 of the civil code), rescinded for injury or reduced for excess before the courts.
Clearly, all acts carried out by a person placed under safeguard will be valid when they pass them, but they can be called into question or even canceled within five years of their conclusions (common law prescription). The courts will take into account the patrimony of the protected person, the usefulness of the transaction and the good or bad faith of the contracting parties.
- It allows a protection of the patrimony of the person under safeguard. His relatives will be able to carry out all the conservatory acts necessary for the preservation of the patrimony of the protected person (article 436 of the civil code). Just as if the adult had granted a power of attorney to a relative, it will not be called into question and will always remain valid.
Appointment of a special representative
However, the guardianship judge may appoint a special representative responsible for exercising certain acts (this is not a general mandate for all property) in place of the adult such as personal acts, patrimonial (or both), deeds. day-to-day management (collection of income, payment of current charges, etc.). He may also be authorized to make acts of dispositions (sale of a property, mortgage, etc.)
A person of full age under safeguard will no longer be able to exercise an act the execution of which has been entrusted to a special representative and the latter will have to account for its management.
Before appointing the special representative, the guardianship judge must obtain the opinion of the person of full age and of the relative to whom he intends to entrust this mission (articles 437 paragraph 2 and 448 to 451 of the civil code). This decision is subject to appeal (article 1250 of the Code of Civil Procedure).
The duration of the safeguard measure
In principle, the 3 modes of safeguarding justice can only be pronounced for one year.
Judicial protection taken while awaiting the opening of a guardianship or curatorship measure ceases as soon as the judgment is rendered. If no decision has been taken one year after the originating request, both the protection procedure and the safeguard decision will lapse.
However, medical and “one-off” backups can be renewed once, for one year. The guardianship judge will rule on the advisability of the renewal on the basis of a new detailed medical certificate and after hearing the adult.
The medical safeguard will end if the doctor certifies to the prosecutor that the situation which justified the safeguard no longer exists.
The “one-off” safeguard ceases once the act for which it was pronounced has been passed or upon release of the guardianship judge.
The safeguarding measures appear in a special directory separate from the civil directory.
This directory is managed by the prosecution services, which authorizes consultation under the conditions set out in article 1251-1 of the code of civil procedure, that is to say to the judicial authorities, to relatives of the protected person (article 430 of the Civil Code) to lawyers, notaries and bailiffs who justify their usefulness.