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France

2016: Decision making and legal capacity in dementia

Consent  

Background to healthcare system and patients’ rights

The healthcare system has been the subject of substantial legislative reforms in France for the last 15 years, resulting in the progressive recognition of the rights of vulnerable persons. This new legal framework consists of several pieces of legislation that, depending on the case, apply to strictly medical situations (e.g. a hospital stay related to a medi­cal procedure etc.) and/or to care and support by social or socio-medical organizations (e.g. retirement facilities, services at home etc.).

We should note that the affirmation of fundamental health rights is most often the result of transposing into French law principles and values set out at the European or interna­tional level (e.g. the Universal Declaration of Human Rights of 10 December 1948, the European Convention on Human Rights of 4 November 1950, the Charter of Fundamental Rights of the European Union of 7 December 2000). Other sources with more limited legal scope complete the French standard-setting framework, such as the medical code of ethics and other ethical charters and professional guidelines.

The recognition of a general and absolute right to health protection is thus stated in article L. 1110-1 of the Code de la santé publique (French public health code): “The fundamental right to health protection must be implemented by all available means for the benefit of all persons”.

Since 2002, two pieces of legislation (Law No. 2002-2 of 2 January 2002 and Law No. 2002-303 of 4 March 2002) have reinforced several ethical principles in the French health­care system such as respect of dignity, privacy and intimacy, the right to be informed, freedom of choice, informed consent, non-discrimination, the right to be protected and freedom of movement etc.

Consent to treatment

The recent reforms related to the right to health have sought mainly to restore the place of the patient’s wishes at the heart of the care system. Seeking the consent of the person who is ill is thus the prerequisite for any treatment.

Article L. 1111-4 of the French Public Health Code stipulates in effect: “that no medical act and no treatment can be practiced without the free and informed consent of the person and this consent may be withdrawn at any moment.”

This is because the human body is inviolable, and cannot be infringed upon without consent. The principle is already stated in the Code Civil (French civil code):

Article 16-1 states: “Everyone has the right to respect for his/her body. The human body is inviolable”

Article 16-3 states: “An attack may be made on the integrity of the human body only in the event of therapeutic necessity for the person. The prior consent of the interested party must be received except in those cases where his or her conditions necessitate a therapeutic action to which he or she is not in a fit state to consent.”

In addition, general provisions surrounding the issue of consent can be found in article 36 of the Code of Medical Ethics:

“The doctor must in all cases attempt to obtain the consent of the person examined or provided with care. When the patient, while in such a condition that s/he is able to express his/her will, refuses the proposed investigations or treatment, the doctor must respect that refusal after informing the patient of its consequences. If the patient is not in a fit condition to express his/her will, the doctor may only take action after warning and informing those close to the patient, except in emergency cases or in cases where it is impossible so to warn and inform. The obligations of the doctor with regard to the patient when s/he is a minor or a protected person of full age are defined in article 42.”

Patients have the right to accept or refuse treatment. In order to be in a position to give informed consent, they must also be fully informed about what is involved and the consequences of the treatment. The obligation to inform the patient is covered by article L. 1111-2 of the French Public Health Code: “everyone has the right to be informed about the state of his/her health.”

In the event of litigation, article L. 1111-2 paragraph 7 of the Public Health Code stipu­lates that the health professional or institution is responsible for furnishing proof that the information has been given to the person concerned […]. The proof can be furnished in any form.

Written consent is not obligatory but it is often requested for important decisions. In some hospitals, written consent (permission to operate) is systematically requested. It does not have legal value, except in cases where it is legally required (e.g. in the case of biomedical research – Law of 20 December 1988). However, due to recent court cases the doctor must be able to prove that he/she has provided the patient with the relevant

Decree No. 95-1000 of 6 September 1995 on the Code of Medical Ethics e.g. Ruling of the Cour de Cassation of 25 February 1997 information in order to give informed consent. Consequently, doctors are increasingly requesting written consent. Nevertheless, it is not clear what the situation is concerning people who are unable to consent, i.e. whether the courts could demand proof that the patient’s guardians had been informed.

Consent in the case of incapable adults

The doctor who performs a medical act without the patient’s consent is likely to engage his/her civil, legal and disciplinary responsibility. In the case of adults unable to make informed decisions, it must be ascertained whether or not they are under some form of guardianship.

If the person is unable to express his or her wishes but does not have a legal guardian, no action or investigation can be carried out without consulting a healthcare proxy, family member or friend (unless this is impossible, or in an emergency) (article L 1111-4 in the Public Health Code, article 16-3 in the civil code). The doctor listens to this opinion, but is not bound to follow it.

If the person has a guardian, it is the legal representative who consents to the treat­ment, although the consent of the protected adult must be sought systematically, to the degree that the person is able to express his/her wishes and participate in the decision

The right to refuse treatment

If a patient refuses treatment, the doctor must respect this decision. Nevertheless, he/ she must make sure that the patient is aware of the consequences of this decision and try to convince the patient that the proposed treatment is in his/her best interests. If the patient remains firm in his/her refusal and the doctor is of the opinion that failure to have the treatment would be dangerous for the patient, he/she must suggest that they obtain a second opinion and insist on the necessity of the treatment. If the patient will not change his/her opinion, the doctor must not abandon the patient and must ensure that he/she continues to receive care should this be the patient’s request.

The right to withdraw consent

Requiring free and informed consent in any treatment procedure implies that consent can be withdrawn at any time (article L. 1111-4, par. 3 of the Public Health Code).

Consent to research

Article L. 1122-1-1 of the Public Health Code stipulates “that no biomedical research can be carried out on a person without his free and informed consent, obtained after the information has been delivered to him. The consent is given in writing, or, when this is not possible, certified by a third party. The latter must be totally independent of the investigator and of the promoter.”

Regarding the consent of vulnerable persons, it is appropriate to ascertain whether or not a legal means of protection has been established.

When the person is not covered by a system of legal protection, but lacks the capacity to express consent, “authorization is given by the healthcare proxy (“personne de confiance”), or in his absence by the family, or in their absence by a person who has close and stable ties to the person” (article L1122-2 II of the Public Health Code).

When there is substantial risk, the guardianship judge gives the authorization. It is impor­tant to note that the French system now allows biomedical research even when the vul­nerable persons are not covered by a system of legal protection, which was impossible prior to the 9 August 2004 law.

When research is carried out on an adult who has a legal guardian (“tutelle”), the consent is given by the guardian.

If the “Comité de protection des personnes” (research ethical committee mandated to evaluate and approve in advance all biomedical research protocols) considers that there is sig­nificant risk of violating privacy or the integrity of the human body, authorization may be given by the guardianship judge (or the Conseil de famille, family council, if there is one).

When research is carried out on an adult who has a legal guardian under the “curatelle” system, the person gives his/her consent with the assistance of his/her guardian. In the event of a high level of risk, the guardianship judge is called on to determine the adult’s ability to give consent. If the adult is unable, the judge decides whether or not to author­ize the research.

An adult under “sauvegarde de justice” (temporary court-ordered legal guardianship) may not participate in biomedical research.

We must note, however, that the opinion of the vulnerable person participating in the research must always be heard. The person must indeed “be consulted to the degree that their state permits” and seeking their “personal commitment” is mandatory (article L1122-2 of the public health code).

The researcher informs the person whose consent is sought of his/her right to refuse to participate in the research or to withdraw his/her consent at any time, without incurring any liability or penalty.

The information communicated is resumed in a written document delivered to the per­son whose consent is sought. When the research is complete, the person who has been a subject has the right to be informed of the global research results, according to terms set out in the information document.

1.5 Approval for biomedical research

According to article L. 1121-4 of the Public Health Code, it is mandatory that any bio­medical research protocol be examined by a Comité de Protection des Personnes (CPP) (research ethical committee) and be approved before it is initiated. The committee gives its opinion on the project’s validity.

In contrast, no specifications are given for certain research projects termed “non-inter­ventional”, notably in the human and social sciences, which do not fall into the CPP’s present field of competence. Some additional administrative authorizations may be required, often in the form of preliminary declarations (notably a declaration to the Commission nationale de l’informatique et des libertés – Law No. 78-17 of 6 January 1978 pertaining to data privacy – for any electronic processing of personal data). Yet these administrative procedures in no way constitute a global and multidisciplinary evaluation of research protocols, and only “common” legislations regulate their practice (informa­tion, obtaining consent and protection of personal data privacy).

Advance Directives

The legal status of advance directives

Since 2005, article L. 1111-11 of the Public Health Code allows any adult to write advance directives in preparation for the day he/she will no longer be able to express his/her wishes.

Conditions surrounding the writing, validity and registration of an advance directive

They take the form of a written document, dated and signed, which can be revoked at any time. The directives can be kept in the medical file for easy access, or remain in the patient’s possession or that of his/her healthcare proxy (“personne de confiance”). Advance directives must have been written for less than 3 years and the author must be able to express his free and informed will at the time of writing

What an advance directive can cover

These directives allow anyone to express their wishes about end-of-life care and limiting or stopping treatment, in case the person becomes unable to communicate his/her decisions.

Obligation to comply with instructions contained in an advance directive

The doctor is not bound by advance directives when he/she decides whether or not to limit or stop treatment. Nonetheless, the doctor is obligated before s/he makes his/her decision to initiate a “collegial procedure” in which the advance directives must be taken into account (article L. 1111-13 of the Public Health Code).  Advance directives have no binding value, but they are an essential document for medical decision-making. Their content prevails over any other non-medical advice, including that of the trusted person.

On the condition that they were drafted less than three years before the person became incompetent, the doctor takes them into account in all decisions concerning investigation, medical procedure or treatment. But although the law gave them a lifespan of only three years, it should be noted that the spirit of earlier wishes endures, particularly when no new advance directives are written after three years.

Legal Capacity

Issues surrounding the loss of legal capacity

In 2007, France adopted a new law that constitutes a thorough reform of the systems for the legal protection of vulnerable adults. As it was, the French scheme was based on laws dating back to 1966 and 1968 that no longer corresponded to current demographic and sociological trends. There were multiple reasons, therefore, behind the reform: longer life expectancy and an ageing population, the rise in the number of decisions pronounced and overloaded courts, and the estimated cost of the system, which would have contin­ued to increase without the reform.

We must also note that as time passed, legal protection applied more and more to prob­lems of social and economic insecurity rather than physical or psychological vulnerabil­ity. The reform thus aimed to focus on the legal protection on people whose impaired physical and mental faculties made them unable to look after their own interests. Rea­sons of a more social nature (such as idleness, extravagance, intemperance) would be the object of administrative measures to establish social and budgetary supervision.

We should note furthermore that the Law of 5 March 2007, which entered into force on 1 January 2009, relates to the safeguarding both of people (health, personal life, etc) and of their property.

The French legal protection system, organised by the Law of 1968, established three types of protective measures: two permanent, curatorship (curatelle) and tutorship (tutelle) and one transitional measure, judicial protection (sauvegarde de justice). The reform, implemented by the Law of 5 March 2007, simplifies and harmonises that situ­ation.

Judicial protection is a measure of protection which applies to a person who needs tem­porary protection or who needs to be represented for certain specified acts.

Curatorship is established when a person is not entirely incapable of handling his/her own affairs but needs to be assisted or supervised in carrying out civil acts.

Tutorship applies to a person who needs to be represented in a continuous manner in order to carry out civil acts.

The law reaffirms the principles of necessity, subsidiarity and proportionality for the safe­guarding measures and strengthens certain rights of people under protection (e.g. the right to vote, obligatory hearing for an adult).

A new legal instrument was created by the law of 5 march 2007: the mandat de protection future (mandate for future protection). It enables anyone who is not under tutorship to appoint in advance, without any legal procedure, one or several people who will represent them in all civil acts, in preparation for a time when they might be unable to look after their own affairs.

The Ordinance No. 2015-1288 of 15 October 2015, which entered into force on 1 January 2016, allows the creation of a new system called "habilitation familiale” (family empowerment), designed to simplify the procedures that a family member will need to follow to represent or act on behalf of a person who cannot express his/her will. It allows the relatives to take these measures without having to submit to the usual formalism of measures of judicial protection (guardianship, curatorship and safeguard of justice ...). Unlike the latter, the judge does not intervene once the authorized person is designated

Proxy decision making

Guardianship

General provisions applicable to all three systems of protection

There are a few general provisions that apply to all three systems of protection. These provisions are listed in articles 425 to 427 of the French Code Civil.

Conditions for the appointment of a guardian

Any person who is incapable of looking after his or her own interests due to a medically ascertained impairment is eligible for legal protection. Unless otherwise specified, the measure covers the protection of both the person and their property.

How guardianship is arranged

The request can be made by any of the following:

  • The person who needs protection.
  • The spouse, the partner in a PACS (civil union contract) or the common law spouse if the relationship is ongoing.
  • Any relative.
  • Anyone who has a close and stable relationship to the person.
  • The person who exercises the legal protection (mandataire spécial/de protection future, curateur, tuteur: special proxy or future protection proxy, guardian).
  • The state prosecutor, in his/her own right or following a request from a third party (e.g. social services, health or medico-social centre etc.) or if the file/application from a person able to make the request is incomplete.
  • In certain cases, the judge. S/he cannot do this when the measure is set up or increased but has the possibility when it is renewed, modified without increasing it or to substi­tute it for another measure, in which case s/he makes a ruling as a matter of course or on the request of the above-mentioned people. S/he can also make a ruling as a matter of course to revoke a mandate for future protection or to set up a measure of protection.

 The following documents and details must be included in the request:

  • A detailed medical certificate showing that the person’s impaired faculties make them
  • unable to look after themselves and the foreseeable development of their condition, filled out by a doctor chosen from the state prosecutor’s list.
  • The personal data of the person to be protected (the name of the person to be pro­tected and details of the facts motivating the request for protection).
  • List of people authorised to bring the case to court.
  • The name of the person’s doctor, if known.
  • All available details on the person’s family situation, finances and property.

The request must be delivered by hand or sent by normal mail to the registry of the tri­bunal d’instance (first instance court). The guardianship judge in the person’s or guardian’s place of residence is territorially competent. S/he investigates the request and holds a hearing – in private – with the per­son concerned (unless this is contrary to doctor’s orders), the person making the request, the lawyer of the person concerned and, if the judge thinks it necessary, with relatives and friends.

Who can be a Guardian

Any person appointed in advance (désignation anticipée, advance designation, by a nota­rised or a private document) can be a guardian.

Otherwise, the Law of 5 March 2007 establishes the family’s central role. In order of pref­erence and depending on the evaluation of the judge, priority is given to the spouse, partner, common-law spouse if still living with the person, relative or anyone living with the person or maintaining a close and stable relationship with him or her. Please note that the judge must follow these rules unless the interests of the protected person demand otherwise.

When there is no friend or relative who can take charge, a legal trustee for the protection of adults (mandataire judiciaire à la protection des majeurs) is appointed, chosen from a list established by the Préfet (local head of government) of the department. This man­dataire judiciaire à la protection des majeurs can be either a non-profit organisation (asso­ciation tutellaire) or a professional guardian (gestionnaire privé). In France, there are also within certain institutions (i.e. those which are state-run with more than 80 beds) social services and agents who deal specifically with people under legal protection.

Expressly excluded are members of the medical or pharmaceutical professions and medical assistants who work with the protected person, as well as anyone who is the beneficiary of a trust set up by the protected person.

Measures to protect the ward from misuse of power

In all cases, the person’s home and furniture are kept as long as possible. Should it become necessary to dispose of the dwelling or sell the furnishings, authorisation must be obtained from the juge des tutelles (guardianship judge) (or the family council if there is one) who decides after hearing the opinion of a doctor who is on the official list maintained by the procureur de la République (state prosecutor). Keepsakes and other objects of a personal nature must not be sold and should be kept at the disposal of the protected person, for instance by the institution where the protected person is living.

The person responsible for protection cannot modify any bank or savings accounts opened in the name of the protected person, nor open new ones without the permis­sion of the guardianship judge. When the person concerned has no bank accounts, the person in charge of protection will open one for him/her.

The right to appeal

An appeal against the decision must be filed within 15 days of the judgement. Appealing against the rejection of the case is possible only for the person making the request.

Judicial protection (sauvegarde de justice)

Judicial protection is covered by article 433 to 439 of the Civil Code.

Conditions for the appointment of a guardian

Judicial protection applies to a person who needs temporary protection or who needs to be represented for certain specified acts.

How judicial protection is arranged

Judicial protection is decided by the guardianship judge when a request that s/he receives to place someone under the tutelle or curatelle form of guardianship (tutorship or curatorship) demands an immediate safeguarding measure.

Medical protection might be requested from the state prosecutor by the doctor treating the person in need of protection, in which case a psychiatrist’s evaluation is required. However, if the person to be protected is hospitalised in a psychiatric institution, the psychiatrist’s evaluation is not required.

Who can be a guardian

If the person under protection has designated a mandataire (proxy) to manage his/her property, the mandate continues to be effective during the judicial protection, unless it is revoked or suspended by the guardianship judge (article 436 of the Civil Code).

If there is no mandate, the rules of gestion d’affaire (Negotiorum gestio) are applicable.

The duties and responsibilities covered by judicial protection

Those entitled to apply for tutorship on the person’s behalf are obliged to perform the civil acts of conservation required for the management of the person’s assets. This obli­gation also applies to the director of the institution where the person is receiving treat­ment or to the person housing the adult under protection.

For other civil acts, any interested person may give his/her opinion to the guardianship judge. The judge may decide to appoint a person for a specific civil act or for a series of civil acts of the same nature subject to certain conditions (article 437 of the Civil Code).

Consequences of judicial protection for the person concerned

A person who has been placed under judicial protection by the court retains his/her legal capacity and therefore does not lose the power to exercise his or her rights.

Nevertheless, any civil act or commitment they carry out may be nullified if it is prejudicial to the person or it may be reduced if considered excessive. These acts can be invalidated

(i.e. considered null and void due to insanity) by virtue of article 414-1 of the Civil Code. This type of action may only be taken during the person’s lifetime by himself/herself and after the person’s death by his/her heirs. Such actions must be taken within five years.

To make its decision, the Court takes into consideration the assets of the protected per­son, the good or bad faith of the other people involved and whether or not the nature of the operation is valid.

Duration of judicial protection

Judicial protection is valid for one year, after which it is renewable once (with a medical certificate and after a hearing with the protected adult). It ends automatically after the first year if it has not been renewed.

Curatorship (curatelle)

Curatorship is covered by article 440 of the Civil Code.

Conditions for the appointment of a curator

Curatorship is established when a person is not entirely incapable of handling their own affairs but needs to be advised or supervised in carrying out civil acts. The Law of 5 March 2007 that came into force on 1 January 2009 does away with curatorship for extravagance, intemperance and idleness.

Who can be a curator

Details of the people who can be appointed curator are also described in the general information on guardianship. In addition, the guardianship judge can appoint a surro­gate curator to supervise the work of the curator.

The curator must be a legally capable adult or emancipated minor and not have been appointed as a trustee through a trust contract.

The duties and responsibilities of curators

The curator cannot take the place of the protected adult. His/her role is to assist him or her. This role can be reduced or reinforced by the judge but the decision must be backed up by a medical assessment or social inquiry. A decision to increase the responsibilities of the curator must be backed by a medical examination, but it is not necessary in order to reduce them because it is for the sake of the protected adult.

Exceptionally, the curator may ask the judge for authorisation to carry out a specific act on behalf of the adult, if s/he considers that otherwise the interests of the adult would be seriously endangered.

The judge may decide to reinforce the curatorship. In this case, the curator receives the income of the person under protection and arranges for payment of expenses involving third parties, depositing any remaining funds into an account opened with an approved depositing institution. In such cases, the curator must submit accounts every year to the chief clerk of the magistrate’s court.

Consequences of curatorship for the person concerned

A person who has been placed under curatorship may not, without the assistance of his or her curator, perform any civil act which, under the tutorship scheme, would have necessitated authorisation from the family council or the judge.

The person subject to curatorship may carry out certain civil acts alone or with the assist­ance of the curator. Such acts are specified when the protective measure is set up or in a subsequent judgement. If the person carries out acts which s/he does not have the necessary authorisation, they may be rendered null and void. Even those that s/he has the authority to carry out alone may be subject to rescission or deduction. Donations may only be made with the assistance of the curator.

Liability of curators (and of tutors)

The Law of 5 March 2007 states that curators/tutors are personally responsible. Part of this responsibility may be delegated to a third party. If the delegated part is not carried out in the best interests of the protected adult, the curator/tutor is held responsible. The judge supervises the implementation of the measure.

Compensation of tutors (and tutors)

The law does not foresee compensation of curators/tutors if the measure is executed by a member of the family. The legal effect of the marriage remains intact, which means that the spouse or common law spouse is obliged to take care of his/her husband/wife.

The judge may authorise the reimbursement of certain sizeable expenses if requested and if the relevant receipts are provided.

Professional curators /tutors are paid by the person under protection in accordance with his/her means. On top of fees, certain management costs of the curator/tutor may be reimbursed.  An additional remuneration may be allocated by the guardianship judge, notably when s/he assigns to the manager tasks which exceed his/her normal powers.

Duration of curatorship (and of tutorship)

The Law of 5 March 2007 limits the duration of curatorship and tutorship to five years but this is renewable.

It stipulates an obligatory re-examination every five years during which the judge hears the adult under protection in order to determine whether the legal protection is still necessary.

The judge can prolong the duration of the protection (beyond the five-year limit). Par­ticular reasons must be cited and supported by the opinion of the doctor responsible for drawing up the medical certificate. The judge must always justify prolongation of the measure, based on a medical examination of the adult. The reason for the prolongation must be that there is no hope of improvement of the adult’s condition.

Tutorship (tutelle)

Conditions for the appointment of a curator Tutorship can be instituted only when neither judicial protection (sauvegarde de justice) nor curatorship can ensure the protection needed. The option of tutorship is appropri­ate in cases where the person needs to be represented in a continuous manner in order to carry out civil acts. The 2007 law reinforces the protection of the person and his/her property including his/her home and bank accounts. The judge may decide to limit the measure if s/he sees fit.

Who can be a tutor

Details of the people who can be appointed tutor are described in the general informa­tion on guardianship (please see above). In addition, the guardianship judge can appoint a surrogate tutor to supervise the work of the tutor.  The tutor must be a legally capable adult or emancipated minor and not have been appointed as a trustee through a trust contract.

The duties and responsibilities of tutors

When instituting the tutorship or subsequently, the judge may enumerate certain civil acts that the person under tutorship will have the capacity to perform him/herself, or with the assistance of the tutor. Unless the guardianship judge rules otherwise, “strictly personal” acts can be carried out by the person under tutorship (e.g. choice of residence).

How the financial affairs of the person are handled?

The manager of the tutorship receives the revenues of the protected person and uses them for the maintenance and treatment of the person concerned. Any excess amounts are paid into an account which must be opened at an approved deposit institution. Every year s/he must submit accounts to the chief clerk of the magistrate’s court.

Appeal

The people previously defined as being permitted to apply for tutorship (including the person him/herself) may appeal to a high court against the judgement, even if they did not intervene at the court proceedings. The appeal must be lodged within 15 days of the judgement’s pronouncement.  The judgment relating to the establishment of tutorship, its modification or cancellation may only be opposed by third parties within two months following its insertion in the margin of the birth certificate of the protected person.

Mandate for future protection (mandate de protection future)

The main innovation of the Law of 5 March 2007 is found in article 477 of the Civil Code which stipulates that any adult or emancipated minor who is not under tutorship may appoint by the same mandate one or several persons to represent him/her, should he or she become incapable of taking care of his/her own interests, for one of the reasons cited in article 425 of the Civil Code. In other words, the mandate for future protection allows adults to organize in advance not only the future management of their property but also their personal protection, should a time come when they can no longer take care of their own interests.

Conditions for the appointment of a representative

Any adult or emancipated minor not under legal protection can appoint a representative by means of a mandate for future protection, as can any adult under curatorship with the help of the curator. One or more proxies may be appointed.

Unless the judge decides otherwise, a mandate for future protection cannot coexist with the person’s placement under curatorship or tutorship. It can, however, coexist with a judicial protection measure. The judge may decide to suspend the effects of the man­date during the measure, which would then resume when the judicial protection meas­ure ends.

How mandates for future protection are arranged
Notarised mandates

For a notarised mandate, the proxy must accept his or her appointment in front of a notary.

The notarised mandate can concern acts of conservation (actes de conservation), “pres­ervation acts” (actes d’administration) that allow reasonable management of the princi­pal’s patrimony or “acts of disposal” (actes de disposition), when something should/can be sold.

One limit to this rule is that “acts of disposal” (“à titre gratuit”) must be approved by the guardianship judge.

The proxy must present annual management accounts to the notary who has the task of supervising and verifying the management accounts. S/he must notify the judge of any unjustified activities or movement of funds. The notary conserves the documents presented and the inventory.

Mandates drawn up as a private deed.

A mandate that is drawn up without a notary must be dated and signed by the principal

(the person drawing up the mandate) and accepted by the proxy. It must be counter­signed by a lawyer or drawn up using a certified form.

There must be as many original copies as there are proxies.

The originals must be signed by the person responsible for supervising the execution of the mandate.

The mandate can only relate to acts of conservation and administration. For all other acts such as acts of disposition and those not covered by the mandate, the proxy must make a request to the guardianship judge for authorisation to carry them out.

The proxy must conserve the inventory, its updates and the last five years of annual man­agement accounts along with documents.

Supervision of management is the task of the guardianship judge and the state prosecu­tor.

In both cases, the mandate for future protection takes effect when the mandate and the detailed medical certificate (less than one month old), presented by the principal, have been verified, stamped and dated by the court registry clerk.

Who can be a proxy/representative

Any person who is legally and morally capable can be appointed representative. The principal is entirely free to choose the representative s/he would like to have (e.g. a friend, lawyer, notary public), but the representative cannot be the guardianship judge or a court registry employee. Similarly, medical or pharmaceutical professionals or assist­ants are expressly excluded.

The duties and responsibilities of representatives

The principal is free to define the extent of the mandate and its responsibilities. S/he can set down provisions for the management of his/her assets.

Consequences of curatorship for the person concerned

The protected person does not lose his or her legal capacity and can therefore continue to carry out valid legal acts. The mandate functions as power of attorney given to the proxy.

Nonetheless, acts performed by the protected person during the execution of the man­date for future protection may be rescinded in the case of lesion, or reduced because of excess (lesion refers to excessive inequality in the obligations of each party in a con­tract).

Measures to protect the principal from misuse of power

As soon as the mandate takes effect (this applies when it is a private deed), the proxy must establish an inventory of the principal’s assets and keep it up-to-date.

S/he must also establish an annual management account (according to the mandate’s specifications).

The proxy must execute the mandate personally but a third party may be called upon to manage the assets.

One or more proxies may be designated who would then simultaneously share respon­sibility. This implies that they should keep each other informed.

If there is only one proxy, s/he must present accounts for the protection of both the per­son and the person’s property.

When the mandate ends, the proxy must be able to produce annual accounts for the last five years, the property inventory and any other document needed to ensure continuity in the management of the person’s property.

Compensation and liability of proxies

In principle, the proxy performs his/her tasks free or charge, but remuneration may be arranged.

The proxy must respect the regulations governing information and consent of the pro­tected person and is not authorised to make “strictly personal” decisions.

If the judge considers that the mandate for future protection is not sufficient to pro­tect the principal, s/he may decide to add another measure (tutorship or curatorship), or allow the proxy to perform one or several acts not covered by the mandate.

Duration of the mandate for future protection

The mandate ends when:

  • the principal regains his or her faculties, as determined by an examination requested by the principal or by the proxy;
  • the principal dies, or is placed under tutorship or curatorship, unless otherwise decided by the guardianship judge;
  • the proxy dies or is placed under guardianship;
  • the guardianship judge revokes the proxy’s appointment.

Habilitation familiale

The person to be protected must no longer be able to protect his/her own interests as a result of a deterioration, ascertained by a doctor, of his mental or bodily faculties which prevent him/her from expressing him/herself.

Can apply for family empowerment the ascendants, descendants, brothers and sisters, partner of a civil pact of solidarity or concubine of the person in a state of vulnerability. The designated person must exercise his or her duties free of charge.

All relatives having close and stable ties with the person to be protected must agree to the designation of the authorized person.

The authorization may relate to:

• one or more acts that a guardian has the power to perform, alone or with an authorization, on the property of the person concerned;

• one or more acts relating to the person to be protected.

The application for family empowerment must be addressed to the guardianship judge by one of the relatives mentioned above or by the Public Prosecutor. The competent guardianship judge shall be that of the residence of the person who is the subject of the authorization.

To apply to the judge, a request must be made to the office of the court of first instance. This request must include a detailed medical certificate drawn up by a doctor on a list drawn up by the public prosecutor.

The judge will then examine the application and will hear the person to be protected (unless the person is not in a condition to be heard or if this hearing is likely to harm his or her health). The judge shall ensure that the other members of the family are adhering to the law or, failing that, of their lack of legitimate opposition to the enabling measure and to the choice of the authorized person. It shall also ensure that the authorization is in accordance with the patrimonial and, where appropriate, personal interests of the person concerned.

The maximum duration of a family empowerment is for 10 years, renewable once. The judge may terminate it at any time if difficulties arise.

Capacity In Specific Domains

Marriage

The person under judicial protection does not require authorisation to marry, unless there is a specific clause in the document designating a proxy.

A person who is under curatorship must obtain the consent of the curator in order to marry or, in the absence thereof, that of the guardianship judge.

According to article 460 of the Civil Code, a person under tutorship can marry only with the authorisation of the judge or the family council if there is one, after a hearing of both future spouses, and if need be after obtaining the opinions of friends and relatives.

Voting capacity

Adult under judicial protection or under curatorship can exercise all their civic rights.

For the adult under tutorship, maintenance of the right to vote must be specified in the legal decision that establishes or renews the measure. If there is no mention of it, the right to vote is maintained. The Law of 5 March 2007 reinforced voting capacity by mak­ing it the default principle for adults under tutorship. They cannot, however, be called to serve on a jury in a criminal court.

Contractual capacity

The legality of business transactions in the case of people who are under any of the three forms of guardianship is determined by the nature of the particular form of protection. In general, a person who is under guardianship is still able to carry out any act except for an act for which the judge designated a mandataire spécial (special proxy).

Mandate for future protection:

The protected person does not lose his or her legal capacity and can therefore continue to carry out valid legal acts. The mandate functions as power of attorney given to the proxy.

Nonetheless, acts performed by the protected person during the execution of the man­date for future protection may be rescinded in the case of lesion, or reduced because of excess (lesion refers to excessive inequality in the obligations of each party in a con­tract).

Judicial protection:

A person who has been placed under judicial protection by the court retains his/her legal capacity and therefore does not lose the power to exercise his or her rights.

Nevertheless, any civil act or commitment they carry out may be nullified if it is prejudicial to the person or it may be reduced if considered excessive. These acts can be invalidated (i.e. considered null and void due to insanity) by virtue of article 414-1 of the Civil Code. This type of action may only be taken during the person’s lifetime by himself/herself and after the person’s death by his/her heirs. Such actions must be taken within five years.

To make its decision, the Court takes into consideration the assets of the protected per­son, the good or bad faith of the other people involved and whether or not the nature of the operation is valid.

Curatorship:

A person who has been placed under curatorship must be assisted when carrying out important acts of civil life (article 440 of the Civil Code). S/he can carry out such acts but with the assistance or under the control of the curator.

Tutorship:

The person under tutorship is continuously represented by the tutor for any civil act.

Testamentary capacity

A person under curatorship may make a will unless this right is restricted under the pro­visions of article 901 of the Civil Code which states that in order to make a donation dur­ing one’s lifetime, or a will, a person must be “of sound mind”. A person under curatorship may write a will by him/herself (unless not of sound mind).

A person under tutorship may, with the permission of the judge or the family council if there is one, be helped or if necessary be represented by the tutor to make donations.

However, once tutorship has been established, the person can write a will only if author­ised by the judge or the family council; otherwise it would be considered null and void. The tutor cannot assist or represent the person in this case.

Nonetheless, the testator can revoke a will established before or after the tutorship pro­cedure (irrespective of his/her degree of incapacity).

A will made prior to tutorship remains valid unless it can be proved that the reasons for which the testator made the will have disappeared since tutorship was set up.

Civil responsibility

An adult who is under judicial protection, curatorship or tutorship is responsible for mis­conduct committed voluntarily or involuntarily, as is any individual. S/he must make rep­aration for any damage s/he causes (article 489-2 of the Civil code). S/he should therefore be covered by personal liability insurance.

Criminal responsibility

In the case of people suffering from mental or neuro-psychiatric disorders, the Law of 5 March 2007 allows for situations in which their criminal responsibility is decreased or even abolished. Thus, if a person at the time of the crime is suffering from a mental or neuro-psychiatric disorder that eliminates judgement or control over his/her actions, the person is not considered criminally responsible. However, if the person’s judgement is only altered s/he remains responsible for the acts in question, which are punishable. In this case, the court takes these circumstances into consideration when it determines the sentence.

It should be noted that there is no link between partial or total irresponsibility and a legal protection measure. The medical assessment established when the judge exam­ines the case will allow the perpetrator’s responsibility to be ascertained at the time of the crime.

The Law of 5 March 2007 contains several innovative aspects, namely that the tutor or the curator of a person who has committed a criminal act is kept informed of the legal process. S/he has the same right as the plaintiff to consult the documents in the file. S/he also has the automatic right to visit the protected person who is in temporary custody.

   

 

 
 

Last Updated: Wednesday 08 February 2017

 

 
  • Acknowledgements

    This report received funding under an operating grant from the European Union’s Health Programme (2014-2020). The content of the Yearbook represents the views of the author only and is his/her sole responsibility; it cannot be considered to reflect the views of the European Commission and/or the Consumers, Health, Agriculture and Food Executive Agency or any other body of the European Union. The European Commission and the Agency do not accept any responsibility for use that may be made of the information it contains.
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