It is a protection regime put in place when the adult must be represented continuously in all acts of daily life.
This is the most serious diet. According to the principle of subsidiarity, it can only be set up if the judge considers that the safeguard of justice or the guardianship were insufficient to protect the interests of the adult.
The request must be made to guardianship judge who will have to designate the bodies responsible for carrying out the measure: the tutor, the surrogate tutor and the family council.
The protected adult
A person of full age under tutorship must exercise all acts relating to himself alone. That is to say those which concern him personally.
He may, except in cases of danger, consent, without representation or assistance, to his own adoption, to his choice of domicile or residence and to maintain personal relations with his friends.
If the adult has children, he or she can make a declaration of birth alone, recognize a child, take actions relating to the exercise of parental authority, choose and change the name of the child or consent to its adoption. .
However, some acts will be subject to authorization, it is:
- Wedding: You need the authorization of the guardianship judge and the family council (if there is one) after hearing the future spouses.
- PACS: Its conclusion must be made with the assistance of the tutor. The joint declaration to the TI and the termination can be done without assistance, but the publicity measures are made by the tutor
- Divorce: If the adult is at the origin of the procedure, the request is made by the tutor with the authorization of the family council or the guardianship judge, after obtaining a medical opinion and hearing the adult.
If the adult is the defendant in the divorce proceedings, the action is directed against the guardian.
If the husband exercises the guardianship measure, the judge will appoint an ad hoc guardian during the procedure.
The tutor
Its designation
The tutor can be appointed in advance in a future protection contract, by the adult himself, or by his parents (this is the case where the last parent exercising parental authority designates a tutor to the child. he would die or lose his mental or physical faculties).
In the absence of any provisions, the tutor will be appointed in priority from among the circle of relatives of the adult and according to his abilities. It could be :
- the spouse, the pacsé partner, the cohabiting partner (except in the event of termination of their cohabitation)
- a parent (father, mother, children, etc.), an ally or friend with whom the adult has close and stable ties
- a judicial representative (MJPM) whose regulated profession is to exercise the function of guardian
If the person is lodged or hospitalized, the function will be performed by the director of the care (hospital) or social (retirement home, etc.) establishment, who may delegate this function to one of his employees.
The judge can appoint several guardians responsible for different missions. One of them could, for example, be responsible for the protection of the person (care, marriage authorization, etc.) and the other for the protection of their property interests (management of bank accounts, investments, etc.).
The tutelary mission
The charge of a guardianship is personal. Once appointed, the guardian cannot delegate it (except in the case of the director of the care establishment). He is responsible for representing and therefore, acting in the name and on behalf of the adult on a daily basis.
Its exercise is limited to 5 years unless the function is exercised by the spouse, the family or the judicial representative.
He is required to make an inventory of assets within three months of his designation and must report annually.
At the end of the tutorship, he gives a final account of his management.
Management of the assets of the adult under supervision
Heritage management is carried out in the form of representation. Article 496 of the Civil Code specifies that the guardian is bound to “prudent, diligent and informed care in the sole interest of the protected person”.
In terms of heritage two kinds of acts are possible:
- Administrative acts: These are acts of day-to-day management, exploitation or enhancement of the protected person devoid of abnormal risks.
- Acts of disposal: These are serious acts that engage the patrimony of the protected adult, for the present and the future, by a significant modification of its content, a significant depreciation of its capital value or a lasting alteration of the prerogatives of its incumbent.
Actions that the tutor can do alone:
- Conservatory and administrative acts
- Legal actions to protect the rights and property of the adult
Namely: If the adult ceases to be protected (he becomes capable again) and the tutor had granted leases on the property of the adult, the tenant will not be able to claim a right of renewal or maintenance in the premises.
The acts for which the guardian must have the authorization of the family council:
- Conclude a contract with a professional for acts of financial management.
- Make deeds of disposal (sale of a building);
- Accept or renounce a succession
Acts prohibited for the tutor:
- Acts involving a free alienation of the property of the adult;
- Acquire from a third party a right or a claim that the latter holds on the protected person;
- Buy property belonging to the protected person;
The subrogated tutor
The subrogated guardian is appointed by the guardianship judge whenever he considers it necessary. If the family council is already constituted, it is he who will have to appoint it.
His role is to supervise the tutor and to refer to the judge any anomalies he will have noticed in the execution of the measure.
He is also responsible for intervening when the interests of the tutor are in conflict with the adult and must be informed before the taking or the conclusion of any serious act.
The ad hoc tutor
He may be appointed if the interests of the tutor conflict with the adult. This is the hypothesis of a divorce procedure, when the guardianship is exercised by the spouse (s) of the adult, without having to distinguish which of the two is the origin of the procedure.
The family council
He is appointed by the guardianship judge with regard to the feelings expressed by the adult, his usual relationships and the interest they show him. As far as possible, people will be chosen from both branches of the family (maternal and paternal).
In addition to the guardianship judge who presides over it (in the event of sharing, his vote is decisive), the family council is made up of at least 4 members. The tutor and the substitute tutor are part of it, but the tutor does not have the right to vote.
The role of the family council is to organize the general conditions of the guardianship. He takes all the important decisions and in particular those relating to the amount of the allowances allocated to the tutor. He is also responsible for giving a mandate to the tutor for the management of the property of the adult.
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.
Sanctions provided for in the event of irregular acts
Irregular acts passed by the protected adult
- Irregular acts passed less than 2 years before the publication of the opening of the guardianship may be reduced if the incapacity was known to the co-contracting party, or canceled if the adult has suffered prejudice.
- The acts passed after the publication of the judgment will be reduced if they are acts that the adult could pass alone or annulled if he had to be assisted or represented to pass the disputed act.
Irregular acts passed by the tutor
If an act has been carried out by the guardian without the authorization of the judge, it will be canceled ex officio.
Limitation period for action in nullity
Article 1304 of the Civil Code establishes the principle that "Time does not run out, (...) with regard to acts done by a protected adult, until the day he became aware of them, when he was in a situation of redo them validly. It does not run against the heirs of the person under guardianship or guardianship until the day of death, if it has not started to run before. "
In addition, it is settled case law that the five-year prescription (5 years) of the action in nullity for insanity of spirit is suspended in the event of the impossibility for the person to act (Cass. Civ, 1st of July 1, 2009 , n ° 08-13.518).
As a result, a litigious act passed by a person of full age who does not recover his spirits, and whose measure is constantly renewed, could potentially be called into question until his death, at which time, the heirs will have another 5 years to question the act.
The responsibility regime
Responsibility of supervisory bodies
Article 412 of the Civil Code provides that “all supervisory bodies are liable for damage resulting from any fault they commit in the exercise of their function. "And article 421 of the civil code specifies that" All the bodies of the measure of judicial protection are responsible for the damage resulting from any fault they commit in the exercise of their function ".
It is therefore a tort liability that will apply, regardless of the fault committed (even the slightest). It is sufficient that the fault has caused damage to the interests of the adult and that it was made during the exercise of the mission of protection.
According to article 423 of the Civil Code, the action in liability is prescribed within 5 years from the end of the mission of the guardianship office.
State responsibility
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 by an adult or his heirs must be directed against the State.
It will therefore be necessary to seize 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 can therefore see his contractual, tort and quasi-tort liability raised whenever his acts cause damage.
