Hire a lawyer for guardianship
Reserved for adults, guardianship is a judicial protection measure. It is similar to the attribution of rights to a person on behalf of another person who is unable to perform his or her civil duties. The protection mechanism is based on an exceptional legal mechanism. These paragraphs lift the veil on the mystery surrounding the operation of guardianship. They also underline the importance of the intervention of a lawyer in the proceedings.
Shedding light on the mechanism of guardianship
Guardianship is a protection mechanism for adults, but what is its purpose?
What is guardianship?
Guardianship is one of the protective measures for adults, especially those of advanced age. Following an accident of some kind, a person becomes disabled and is no longer able to protect his or her interests and assets. The measure takes effect as soon as the person appoints another person to act on his or her behalf.
A guardianship is the designation of a special person called a guardian. This person will be in charge of acting on behalf of, in the name of and in the interest of the person placed under guardianship. The latter loses, at the same time, his full legal capacity.
Guardianship and curatorship: what is the difference?
The law has put in place 3 measures to protect a person showing symptoms of physical or psychological incapacity: guardianship, curatorship and safeguard of justice. Each measure has its own degree of protection.
A curatorship is a fairly lenient measure that allows the person to be supervised to be watched over and accompanied. Nevertheless, the person still has control over his or her budget. The curator only intervenes in the management of important expenses: real estate purchases, bank loans… The procedures require, in certain cases, the intervention of a lawyer specialized in curatorship or a lawyer for reinforced curatorship.
Guardianship is a safe and therefore more restrictive option. It prevents the person under guardianship from managing his or her assets alone. The appointed guardian has control over all expenses.
Safeguard of justice is the least restrictive option. For a limited period of time, the protected person, who is still autonomous, can have some of his or her rights withdrawn by the judge.
Who can apply for guardianship?
Guardianship procedures are initiated by :
- The person to be placed under guardianship ;
- The partner of the person to be placed under guardianship (civil union, common law, civil union or married);
- A family member: a parent, a brother, a sister, an aunt, a cousin;
- A close relative who has a close and stable relationship with the person to be protected;
- An ally of the family;
- A person exercising a legal protection measure (i.e. a curator or a tutor);
- The public prosecutor.
Following the request of the authorized person, the judge orders the placing under guardianship. The judge’s decision is made after confirming the physical or intellectual incapacity of the person to defend his or her interests.
What are the impacts of a guardianship order?
The person to be placed under guardianship is deprived of his or her freedom to act alone and as he or she pleases. If the protected person suffers from a physical incapacity, he loses his civil rights. He is no longer authorized to carry out acts of administration. He can no longer make family decisions. Without the intervention of the guardian, he cannot renew his identity papers. Without the judge’s authorization, he cannot celebrate his marriage or civil union. Similarly, he must obtain the judge’s approval before making decisions concerning his principal residence. His agreement is also required for the drafting of a will and any donations. The person to be protected also loses the right to vote.
In the interest of flexibility, the regime imposes a specific provision depending on the degree of impairment of the person’s capacities.
What happens when a person is placed under guardianship?
Guardianship involves a series of legal procedures that begin with an application.
How do I apply for guardianship?
The application for guardianship is sent to the guardianship judge of the district court. The application is followed by the completion of the Cerfa N 14919*01 form. The application includes a detailed presentation of the identity of the person concerned. It also describes the reasons that justify the request. It is accompanied by a medical certificate confirming the condition of the person to be protected.
During the examination of the application, the guardianship judge of the district court examines the context with a fine-tooth comb. This is followed by discussions with the people concerned. The guardianship judge interviews: the person to be protected, the applicant, the person’s relatives and the attending physician. The measures to be taken will result from these interviews.
The judgment takes place in the presence of the person, thelawyer under guardianship and possibly the relatives. The judge defines the measures to be taken, appoints the guardian and sets out the conditions of the guardianship.
Is it possible to put a person under guardianship without his or her consent?
There are two possible scenarios: a person suffers from a deterioration of his or her physical capacities or shows mental instability. After a relative has made a determination, an application for guardianship is sent to the guardianship judge. The request is accompanied by a medical certificate and a Cerfa form.
The purpose of the application for guardianship is to protect one’s interests and assets. The steps can thus be taken without his agreement.
Moreover, future protective measures are determined according to the person’s degree of incapacity.
What to do after the application for guardianship?
While waiting for the final decision, the judge can temporarily place the person under a protective supervision order. Under these conditions, the person retains his or her rights.
The person placed under guardianship, a third party or the guardian himself can request the replacement of the appointed guardian within 15 days of the judgment.
Guardianship lasts 5 to 10 years, depending on the person’s condition. The judge may extend the term by another 10 years (for a total of 20 years of guardianship) if the person’s stability deteriorates. However, the maximum duration is 20 years.
The guardianship ends at the end of the period defined in the judgment, following a new decision of the judge or the pronouncement of a curatorship.
How can I refuse to be placed under guardianship?
The person concerned may, at any time, object to the guardianship judge’s decision and to the opening of a guardianship order. To express his or her objection, he or she must file a statement of appeal including
- The information of the applicant for guardianship (last name, first name, nationality, address, profession, date and place of birth);
- The information of the person opposing the application (surname, first name, address, date and place of birth, occupation);
- The subject of the request.
The opposition request is sent by registered letter with acknowledgement of receipt. It must be sent to the judge within 15 days of the notification of the judgment. It can also be sent to the secretariat of the judicial court. The latter then sends it to the competent court of appeal which will evaluate the request.
Involving a guardianship lawyer
The consultation of a family law lawyer is optional in a guardianship case. However, in some situations, the presence of a lawyer is essential.
What is the lawyer’s role?
The primary role of the guardianshiplawyer is toinform the person to be protected. He explains the different existing legal protection measures. He or she will then direct the person to the system that best suits his or her needs.
His intervention is required if the person has substantial assets that are at risk of mismanagement. As an expert, he will provide the necessary legal advice with complete objectivity.
He will also defend the person and obtain relief from the guardianship measures. He can even remove the application provided he can provide evidence of the person’s full capacity.
In addition, the lawyer acts as a family mediator. He promotes dialogue between the person to be protected and the members of his family in order to reach a common agreement to place him under guardianship.
The importance of the lawyer for a guardianship application
The court hearing is a procedural act. It will allow the judge to form an opinion of the condition of the person concerned independently of the medical reports. The lawyer, the person to be placed under guardianship, the applicant and the family members attend the hearing.
If the adult to be protected has no contacts or has difficulty finding a suitable lawyer, he or she asks the guardianship judge to appoint a court-appointed guardianship lawyer. It should be noted that this lawyer does not offer his services free of charge. The expert is made available to the person and will therefore bill his fees to his client. If the client does not have the means to pay the bill, the lawyer will act as legal aid.
