When illness, disability or an accident leaves an adult unable to take care of themself and their property, a judge can be asked to appoint someone else to represent them under one of two systems of legal guardianship: tutelle or curatelle.
Tutelle is more restrictive than curatelle
In the first, the judge designates a person (or people), called a tuteur, to represent the person in certain everyday tasks and might specify what the protected person can and cannot do on their own.
In curatelle, one or more curateurs are appointed, to advise or accompany the person in important acts.
Of the two, tutelle is more restrictive, while curatelle should allow the person involved more freedom.
For example, under curatelle, they might be able to continue to manage property, including renting it out, but would need to have help to sell it or to take out a loan.
Often the judge’s office not a courtroom is used for proceedings
In either case, a juge des contentieux de la protection imposes this legal protection.
An application is made to this judge at the local tribunal judiciaire court, by the affected person or someone close to them, such as a partner, parent or the person’s in-laws.
The affected person must appear before the judge and express their view unless there is a medical note stating that this is not possible. They have the right to an avocat (lawyer).
Proceedings are held behind closed doors and often the judge’s office is used, rather than the courtroom.
If possible, tuteurs or curateurs will be members of the person’s family.
Where this is not possible, a professional who specialises in the area, called a mandataire judiciare à la protection des majeurs, will be appointed by the court.
What costs are involved?
The process itself is free but medical certificates outlining the person’s mental state and likely outlook, which are often required, have to be paid for, with a fixed rate of €192 per certificate.
If the person or their relatives cannot or will not pay, judges can order these, in which case the charge falls on the state.
If lawyers are involved, their fees must be paid too. The judge will rule on how long the set-up should last, and renewals may be granted, within certain limits.
These guardianships can be ended in several ways, notably if the judge deems them no longer necessary.
Attitudes are changing but, unfortunately, there can still sometimes be stigma attached to being placed under tutelle in parts of France.
Part of the reason is financial as service providers might fear complications if they have to deal with a guardian, especially if that is a professional who does not live locally.
However, as well as tutelle and curatelle, five other legal procedures have been developed to protect vulnerable people, especially the elderly.
1. Mandat de protection future
Mandat de protection future allows an adult, the mandant, to designate one or more mandataires who can look after their interests in the future, if they cannot.
There are two forms: mandat sous signature privée, limited to administrative tasks, and mandat notarié, which allows a mandataire to do more.
In the former, the mandataire could, for example, renew a tenant’s lease for an investment property; in the second, he or she could also sell the property.
Both aim to anticipate a loss of mental or physical capacity and to avoid the more formal tutelle or curatelle.
There might be a single mandataire, or the person asking for the mandate can appoint several mandataires with designated tasks – someone to look after a person’s physical needs, and someone else to look after their money, and a third person to look after their property investments, for example.
2. Sauvegarde de justice
Sauvegarde de justice is a short-term protection measure that can be deployed while a judge decides on a tutelle or a curatelle, or while a person recovers – for example, if they are incapacitated due to illness.
The sauvegarde de justice can be either a medical- or judicial-led procedure and applies when adults have physical or psychological difficulties due to illness or injury.
Infirm elderly people can also use the system, as can adults whose physical or mental difficulties mean they cannot express immediate wishes but might be able to do so in the future.
3. Habilitation judiciaire pour représentation du conjoint
Habilitation judiciaire pour représentation du conjoint allows married people to represent their spouse in administrative matters if they cannot do so themselves due to mental incapacity, illness, disability, an accident or hospitalisation.
It is not available to people in a civil partnership and any adult children have to agree to it.
4. Habilitation familiale
Habilitation familiale allows a broader range of acts to be carried out and for other close family members to represent the individual.
They include a spouse, adult child, parent, grandparent, brother, sister, Pacs partner or unmarried partner.
The person subject to the habilitation must be unable to express their wishes about, or understand acts of, daily life.
It is given only where alternatives such as a mandat de protection future are not enough to protect their interests.
5. Une mesure d’accompagnement social personnalisé (Masp) or judiciaire (Maj)
Une mesure d’accompagnement social personnalisé (Masp) or judiciaire (Maj) is put in place by social services to protect adults unable to manage their benefits and other money (for example, they are liable to give large sums away or to make inappropriate purchases).
A Masp can be ordered at the request of the person, while a Maj is due to a judicial process started by a social worker.