The guardianship judge is a judge of the district court. This specialized function was created by the law of December 14, 1964. It is appointed from among the magistrates by the president of the District Court (article R.222-2 of the code of judicial organization).
With the law of March 5, 2007, which entered into force on January 1, 2009, several reforms were introduced to renovate and supervise the intervention of the supervisory judge.
From now on, we no longer open guardianship for the prodigal (the gambler, the gambler ... compulsive) or the idle (like this dandy "rentier" vestige of the XIXth century). Everyone is free to lead their life as they see fit (within their financial means and intellectual capacities) and legislation governing the protection of adults is no longer a civil punishment left to the appreciation of families.
This is all the novelty of these texts which consider the protection of adults from the angle of the dignity of persons, individual freedom and fundamental rights. This is the reason why the middle finger is, unless medically impossible, associated with all phases of the procedure.
Area of competence of the guardianship judge
Since the 2007 law, its area of competence is now limited to the sole protection of adults.
The protective measure is open to "any person unable to provide for their own interests on their own due to a medically established deterioration". It may be a question of mental alteration (due to age, illness, etc.) or bodily alteration (illness, infirmity, etc.) which makes it impossible for the adult to express any will.
In their interest, the guardianship judge may take measures of judicial protection or administrative support.
Judicial protection measures
- Safeguarding justice (article 433 and following of the civil code)
It is a temporary protection regime (1 year maximum) during which the adult retains the exercise of all his rights but whose acts performed during this period (contracts, etc.) may subsequently be called into question;
- Simple or reinforced curatorship (article 440 and following of the civil code).
Under this regime, acts of adults will be subject to assistance or control by a curator.
- the guardianship (article 473 and following of the civil code).
The adult needs to be represented continuously by a tutor. A family council is appointed to authorize the tutor to carry out all acts of provisions (the most serious acts relating to the property of the protected adult).
- Lhis future protection mandate (art. 477 et seq. of the civil code)
It is a contract entered into to protect a person in anticipation. The adult can organize in advance his guardianship and appoint his guardian (for example in the event of illness or the deterioration of his faculties would be inevitable). Parents could leave testamentary provisions in order to organize the guardianship of a child of full age ...
This mandate can be made by private deed, by authentic deed (at a notary) ... And become effective as soon as the principal can no longer provide for his interests alone.
- La judicial support measure (MAJ) (art. 495 et seq. of the civil code)
Formerly known under the term of "supervision of social benefits", it allows specialized representatives to support adults in their efforts and to manage their social benefits.
This measure intended to promote the social integration of the people concerned is framed in articles 271-1 to 271-8 of the code of social action and families. It is a contract concluded with the departments to authorize them to collect social benefits of the adult and to allocate them to the payment of the current expenses, with in priority the rent. This is to promote the autonomy of adults by protecting their home.
If the adult refuses to sign the contract, the president of the general council may request authorization to withdraw a sum from social benefits and to allocate it exclusively to the payment of rent.
These measures are applied by legal representatives for the protection of adults (MJPM) whose profession is regulated by articles 471-1 to 471-8 and 472-1 to 472-14 of the code of social action and families). They are registered on departmental lists and are paid by the adult if he is solvent or by the community if the adult is insolvent.
Namely: The territorially competent judge is according to article 1211 of the code of civil procedure that of the place of residence of the protected adult, to be protected or of the domicile of the guardian.
This means that if a measure of protection, for example a guardianship has been opened 2 guardianship judge will have concurrent jurisdiction: that of the domicile of the adult who pronounced the opening and that of the guardian (article 108-3 of the civil code). In such a case, the second may, within the framework of a good administration of justice, automatically disclose his incompetence, but nothing obliges him to do so.
The procedure common to all protection regimes
The request for the opening of a protective measure
Since the law of March 5, 2007, the guardianship judge can no longer seize ex officio.
Article 430 of the Civil Code specifies that the referral may be made by the person concerned, his spouse, his partner, his PACS partner (unless the community of life has ceased), a person maintaining close ties with the adult and stable (friends), a relative or ally (step-parent) or the public prosecutor who can act either ex officio or upon notification.
Namely: The reporting the public prosecutor can be made by social services, healthcare establishments (hospitals, etc.) and all persons not mentioned in article 430 of the civil code (notaries, doctors, etc.)
The request must specify which people make up the close entourage of the adult to be protected, the name of his attending physician, if applicable, as well as the elements concerning his family, financial and patrimonial situation.
The detailed medical certificate
On pain of inadmissibility, the request must be accompanied by a medical certificate drawn up by a doctor chosen from a list drawn up by the public prosecutor (article 1219 of the code of civil procedure).
It specifies the form of alteration from which the adult suffers, the possibilities for the alteration to evolve, the mode of protection adapted to his situation, whether he can be heard by the judge and whether he must benefit from the right to vote. .
This detailed medical certificate, although given to the person concerned in a sealed envelope, can only be read by the supervisory judge and the public prosecutor.
Namely: In the name of the dignity of people, individual freedom and fundamental rights if a person refuses to submit to medical examinations nothing can oblige him to do so. She will simply be issued a certificate of deficiency. The judge will have to rule according to the elements in his possession, so if nothing attests to the deterioration of mental faculties, he will not be able to do anything.
In a judgment of June 29, 2011, (Cass. Civ, 1st of June 29, 2011, n ° 10-21.879), the judges made a strict interpretation of article 431 of the civil code: “Whereas under the terms of this text , the request for the opening of a judicial protection measure must, on pain of inadmissibility, be accompanied by a detailed certificate drawn up by a doctor chosen from a list drawn up by the public prosecutor; ". No medical certificate, no protective regime.
Some have drawn from this refusal the proof of an alteration of mental faculties and others the proof of an astonishing lucidity since they understand what the establishment of such an act implies.
To date, the question of refusal has still not been resolved by case law.. One thing is certain, one does not protect a major against his will.
The cost of the doctor's intervention, which is the responsibility of the applicant, is set by Decree No. 2008-1485 of December 22, 2008 at 160 euros. However, the guardianship judge may, in his judgment, provide for leaving the burden of these costs to the adult if he is solvent or to the State if the adult is insolvent.
Consultation of the file
Throughout the procedure, the parties concerned will be able to consult the file at the registry on simple written request.
However, if it is the adult who requests it, the judge can exclude certain documents from the case if they are likely to cause him "serious psychological damage" (article 1222-1 of the code of civil procedure). He will then issue a reasoned order which will be notified to the adult.
The file must be sent to the public prosecutor at least 1 month before the hearing so that he returns it to the guardianship judge at least 15 days before the hearing with an opinion on the advisability of opening a protection regime.
If it is only a simple renewal of the measure, the referral to the prosecutor will not have to be, except if the measure must be reinforced (1228 of the code of civil procedure and 442 of the civil code) .
The hearing takes place in the council chamber (generally it is the office of the guardianship judge).
The adult and the applicant are summoned to the hearing and will be heard by the judge on the advisability of setting up, or not, a protective regime.
Unless the hearing is likely to affect the state of health of the adult (article 432-2 of the civil code) or if he is unable to express his will (1226 of the code of civil procedure).
If they are assisted by a lawyer, they will be heard in their observations (no major argument but details of the case).
The office of the judge
The protection regime is governed by the principle of subsidiarity and necessity. This means that it will only be implemented if no other alternative is possible. Likewise, the appropriate regime will be chosen with regard to the strict necessity of the acts to be performed. Thus, the guardianship will only be considered if the safeguard and the guardianship prove insufficient to protect the adult.
If these conditions are met, the judge may render his decision at the end of the hearing or postpone it (if the parties have too conflicting relations, or if the adult opposes it).
He will have to decide on the form of judicial protection (safeguard of justice, curatorship or guardianship) or administrative, the duration of its implementation (5 years or more if the doctor concludes that no improvement is possible), the person responsible for exercising the measure or assisting the adult ...
Article 1230-1 of the Code of Civil Procedure specifies that the judgment is notified to the applicant, to the person responsible for carrying out the measure and to the protected adult or his lawyer (if his mental capacities are impaired).
A notice of the judgment is always sent to the public prosecutor.
It is up to the secretariat-registry to proceed to notifications by registered letter with acknowledgment of receipt, or by hand delivery against a dated and signed receipt.
Namely: If no decision has been taken within one year after the request, the procedure lapses (article 1227 of the Code of Civil Procedure). The judge will have to summon the parties again.
Since the law of May 12, 2009 and its implementing decree of September 23, 2009, the decision may be appealed to the Courts of Appeal (and no longer to the Tribunal de Grande Instance) by declaration or by registered letter to the registry. of the District Court which forwards it without delay to the Court of Appeal with a copy of the file (article 1242 of the Code of Civil Procedure).
The person of full age, the applicant, the person designated to carry out the measure, relatives (even if they are not parties to the proceedings) and the public prosecutor will be entitled to appeal.
Namely: If the guardianship judge rejects the application for protection, the appeal is open only to the applicant.
The deadline for appealing is 15 days from the notification of the decision.
In principle, the effects of the judgment are suspended, but the guardianship judge may add to his decision the provisional execution. In this case, only the first president of the court of appeal can suspend the effects as provided for in article 524 of the code of civil procedure.
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 Tribunal de Grande Instance (TGI) of the place of birth.