Protect the weak without ever diminishing them
The freedom to act is a fundamental principle, but this freedom is sometimes restricted in the interest of certain people who are weakened or made vulnerable by a physical or psychological illness, old age, social difficulties or an ignorance of their family obligations.
To protect them from any thoughtless act or act prejudicial to their interests, the law will regulate all acts relating to their property and / or their persons.
The principle: Everyone has legal capacity
The term "capacity" is not synonymous with "power" but with aptitude. Everyone is deemed to be able to enjoy and exercise their rights.
According to article 8 of the civil code, all “French people will enjoy civil rights”. The capacity for enjoyment is the ability to be the holder of a right (to be designated as heir…) and it is acquired from birth.
Article 414 of the Civil Code specifies that “the majority is set at 18 years of age; at this age everyone is able to exercise the rights they enjoy ”. The capacity to exercise is the ability to exercise one's rights (enter into a contract, etc.) and is acquired upon reaching adulthood.
The exception: Protected adults
Vulnerable people (like unemancipated minors) will always have a capacity for enjoyment, but their capacity for exercise will be limited in their own interests.
According to article 425 of the Civil Code, this concerns people who are "unable to provide for their interests on their own due to a medically established deterioration either of their mental faculties or of their bodily faculties of a nature to prevent the expression of his will ”.
A protected adult is therefore a person who is unable to provide for his own interests on his own due to a medically established alteration. However, depending on the protection regime, take actions and exercise their rights:
- alone (recognition of a child ...)
- with assistance: She performs an act alone but someone is by her side and will co-sign the act to look after her interests (curatorship)
- with representation: The act is carried out by a third party acting on behalf and in the interest of the protected person (guardianship).
The first legislation in this area is the Esquirol law of June 30, 1838 on the internment of the insane, then came the great reform of Dean Carbonnier of June 3, 1968.
But over time, notable drifts have been observed with the almost systematic placing under guardianship of over-indebted people, drug addicts, alcoholics ... Up to a significant congestion of the jurisdiction of the guardians since there were still 700 cases in progress. in 000 !
Law n ° 2007-308 of March 5, 2007 (entered into force in 2009) profoundly modified, supervised and simplified the regime for protected adults.
The most significant change is the terms used to designate these adults. The words madness, insanity, insanity, indigence, intemperance, idleness, incapable… have all been abandoned by the legislator in favor of generic terms such as “impairment of personal or mental faculties” and “vulnerable persons”.
The 2007 reform, drawn up on strict respect for individual freedoms, fundamental rights and human dignity, relies primarily on the family and relatives of the protected adult to exercise the protection measure. A trend confirmed with the creation by ordinance No. 2015-1288 of October 15, 2015 of “family empowerment” which is more flexible to implement than tutorship or curatorship. It is only in the absence of family support that the guardianship judge can appoint a judicial representative for the protection of adults (MJPM) whose function has been completely reorganized.
The legislature has also reframed the powers of guardianship judge. He can no longer seize ex officio, he must comply with the opinion of an expert doctor, refer all his decisions to the civil service of the public prosecutor's office and above all check whether the legal conditions are met for the opening of a protective measure.
The guiding principles of the protection system for adults
The principle of subsidiarity
The idea is that the system for the protection of adults will only be applied as a last resort, if no other alternative makes it possible to protect their interests.
Article 428 of the Civil Code provides that the protective measure “may only be ordered by the judge in the event of need and when it cannot be sufficiently provided for the interests of the person by the application of the rules of representation, those relating to the respective rights and duties of the spouses and the rules of matrimonial property regimes (...) by another measure of judicial protection less restrictive (…) ”.
The principle of necessity
Article 415 of the Civil Code, "adults receive the protection of their person and their property that their condition or situation makes necessary".
This principle of necessity is conditioned by the existence of an alteration of mental or physical faculties medically established. The legislator submits the admissibility of the opening of protective supervision to the assent of a doctor. And not just any doctor, he must appear on a list drawn up annually by the public prosecutor.
He must give a detailed opinion on the mental and / or physical faculties of the adult with regard to the provisions set out in article 1218 of the code of civil procedure.
Note: If the adult refuses to submit to the medical examination, nothing can oblige him to do so. The guardianship judge will not be able to rule on the advisability of a protection regime and therefore, will not be able to institute measures in his favor.
Case law prior to the 2007 law granted the judge the power to place an adult under guardianship who refused to submit to these medical examinations. From now on, the judges of cassation, strictly applying the texts which subject the opening of a protective regime to the medical evaluation of the adult, refuse that an adult is automatically placed under protective regime in the name of the fundamental principles governing human rights.
Lack of representation
Legal mechanisms make it possible to compensate for a person's vulnerability by allowing a third party to represent him and therefore to act for him.
It is necessary to check whether the mandates granted by the adult to his relatives by means of powers of attorney are sufficient to preserve his interests (management of his bank banks, automatic debits for the payment of his current expenses…).
Note: Unless the guardianship judge advises otherwise, these mandates will not be revoked and will take effect throughout the procedure until the effective opening of the protection regime.
The matrimonial regime
If the adult is married, articles 217 and 219 of the Civil Code relating to the matrimonial regime already provide for a system of representation which authorizes a spouse in the event of default by his spouse, to represent him to carry out all the acts of daily life.
If none of these provisions is possible, it will then be possible to apply to the guardianship judge who will have to choose among all the possible regimes the most suitable for the adult to be protected.
The principle of proportionality and individualization of the measure
Article 428 paragraph 2 of the Civil Code "the measure is proportionate and individualized according to the degree of alteration of the personal faculties of the individual".
The least restrictive measure
The measure of protection must be graduated according to the capacity of discernment of the adult. It is up to the doctor to suggest the most appropriate measure to the judge.
The adult must be able to express himself on all the measures envisaged, whether it concerns the choice of the regime or the person responsible for carrying it out, the opinion of the adult can no longer be ignored.
A measure limited in time
Article 439 of the Civil Code limits the safeguard of justice to 1 year, with the possibility of renewing it only once (therefore 2 years maximum).
Article 441 of the Civil Code provides for limiting a guardianship or curatorship measure to 5 years.
At the end of the five years, the judge must systematically re-examine the situation of the protected adult and may renew it either:
- for a further 5 years
- for a longer period if, in the light of the medical opinion "the alteration of the personal faculties of the person concerned does not appear obviously likely to know an improvement according to the data acquired from science".
In the absence of a review, the measure lapses. To renew it, it will be necessary to resume the procedure from the beginning.