Guardianship is a legal measure intended to protect a person and their assets when they no longer have the mental and/or physical capacities to make decisions alone and look after their interests. The purpose of this procedure is to appoint a guardian, most often a relative, who represents her in her acts of civil life.
Guardianship refers to a judicial measure intended to protect a person and/or their assets if the latter no longer has the mental or physical capacities to protect their own interests. Under guardianship, a third person is appointed and represents the person concerned by this measure in their acts of civil life.
Guardianship is the strongest legal protection after curatorship and legal protection. This measure is pronounced by a judge, the protection litigation judge.
Guardianship may concern adults who can no longer express their own will due to the alteration of their mental or bodily faculties and, consequently, no longer be able to perform certain acts and in particular manage their assets.
A guardianship can be requested from a judge directly by the person to be protected by this measure, by the person who lives in a couple with him (spouse, PACS or cohabitant), by a parent, for example a brother-in-law or a mother, by a relative who maintains close and stable ties with her, or by a magistrate, the Public Prosecutor.
The person at the origin of a request for guardianship must provide the judge, in addition to a specific completed form (Cerfa n°15891), supporting documents such as a full copy of the birth certificate of the person to be protected, a copy of the identity document of the person to be protected and of his own identity document, and a detailed medical certificate, that is to say a certificate where a doctor describes the alteration of the faculties of the person concerned by the guardianship measure and the need for him to be accompanied and represented. The relationship with the person to be protected must also be proven using documents (copy of the family record book, marriage contract, civil partnership agreement, etc.). A letter attesting that the family members agree to the appointment of a guardian must also be provided with the application for guardianship.
Following this request, the judge summons the person to be protected by this measure, accompanied according to his choice by a lawyer or a person of his entourage, unless this interview is not deemed necessary on the advice of the doctor at the origin. of the medical certificate.
The judge who pronounces a measure of guardianship must as a priority seek his guardian among the relatives of the person concerned. It can be one of his children, a brother, a sister, etc. If possible, the judge should ask the person placed under guardianship about their wishes regarding the relative whom they would like to see appointed as their guardian.
The judge also has the option of appointing a professional tutor called a "judicial agent for the protection of adults" if no close relative can be designated as such. This professional, who may be an employee of a specialized organization (association with a judicial protection service, Ehpad, etc.) or a self-employed person, but must be registered on a departmental list drawn up by the Prefect, is responsible for social, administrative, legal and financial support for the person placed under guardianship. He may, like any guardian, for example be required to pay the protected person's bills, expenses, etc. The legal representative also manages the property of the person under guardianship, or helps him to be prudent in this matter. This professional is remunerated by the protected person or the State if his financial means are not sufficient.
The judge has the possibility of appointing several tutors, a relative and a legal representative.
The outline of the guardian's missions are defined in the initial judgment of the placement under guardianship. The tutor must regularly report to the judge on the execution of his mandate. First, he must send the judge an inventory of the assets of the protected person within 3 months of the initiation of the guardianship measure. The guardian must also send a report on the management of the accounts of the person under guardianship every year, unless the judge decides otherwise because of the modest assets of the person concerned.
The term of the tutor's mandate is fixed by the judge. It cannot exceed 5 years, or 10 years if the person under guardianship obviously has little chance of regaining all his mental or physical faculties. The judge can terminate the guardianship at any time if it is no longer necessary and upon the death of the protected person.
A person placed under guardianship completely loses their legal capacity, i.e. they can no longer perform certain acts alone, without the assistance of their guardian. This legal protection measure is recorded in the margin of his birth certificate.
The guardian has the official legitimacy to make decisions in his or her place, often a situation that allows for legal recognition, for example for children who are already in fact taking charge of the management of certain acts of their elderly parents. In this sense, guardianship avoids any conflicts that may arise between relatives since one of them officially holds this role.
The guardian is responsible for day-to-day management acts such as the conclusion of a residential lease, the opening of a deposit account, the renewal of an identity document, etc. On the other hand, it is the judge who intervenes for the acts which engage the heritage of the person under guardianship, as well as his main residence.
However, the guardianship does not deprive the person concerned by this protective measure of their right to vote. In the same way, a person under guardianship can decide to marry, to enter into a civil partnership or to divorce. The authorization of the judge who pronounced the guardianship is not necessary in these cases. Nevertheless, the tutor must be informed of this and he has the possibility of opposing it if the circumstances so require. In this context, the guardian can even conclude a matrimonial agreement on his own initiative to protect the interests of the person protected by the guardianship measure. A person under guardianship is also not deprived of parental authority.
