A person who is partially or completely unable to safeguard their own interests due to a state of weakness, temporary incapacity of judgment, or absence can request the institution of a guardianship (curatelle) as per Art. 390 et seq. CC or have it imposed by the adult protection authority. "State of weakness" refers to a person affected by mental impairment, a psychological disorder, or any other condition impacting their personal well-being.
Guardianship is a subsidiary measure, meaning it only applies when no other means are available to manage the affairs of the person concerned, such as a legal or contractual representative, family members, or close relatives. The Civil Code provides for four types of guardianship that can be combined:
Guardianship of Assistance (Art. 393 CC): This type is for individuals who need non-legal assistance and/or support, meaning they require help to perform certain acts. It is the least restrictive form of guardianship. The person must consent to its establishment since their civil capacity is not limited. The person should be willing to collaborate and accept assistance from others.
Guardianship of Representation (Art. 394 et seq. CC): This is for individuals who need legal representation in certain matters. The person is bound by the curator's actions. However, the curator’s representation cannot extend to strictly personal rights. It is important to note that some acts require prior consent from the protection authority, and the authority can restrict the exercise of civil rights through a decision (Art. 416 CC), particularly if the person is incapable of judgment. This includes, for example, liquidating a household or terminating a lease. There is also a special form of guardianship of representation called guardianship of management (Art. 395 CC). In this case, the adult is incapable of performing certain acts related to managing their assets and therefore must be represented. The person may be deprived of access to their assets. The consequences of Art. 394 CC apply analogously.
Guardianship of Cooperation (Art. 396 CC): This applies when there is a heightened need for protection in economic matters. To safeguard the person's interests, certain acts are subject to the curator’s consent. The person exercises their civil rights themselves, but only with the curator's consent is required, not their representation.
Guardianship of General Scope (Art. 398 CC): This is the last resort form of guardianship. It applies to an adult with a particular need for help due to a permanent incapacity for judgment. The guardianship covers all areas – personal assistance, asset management, and legal relations with third parties – and it automatically deprives the person of the exercise of their civil rights.
Guardianship ends with the person’s death or a formal decision by the authority to lift the measure. The lifting of the guardianship can be reviewed at any time at the request of the person concerned, a close relative, or ex officio. When there is no longer a reason to maintain it, the adult protection authority will lift the guardianship without delay. This could be the case when the person can manage their own affairs or when the curator’s tasks are correctly performed.
If you need further legal information on this subject, do not hesitate to contact the Valentin Legal Consultation. We would be pleased to assist you at our office, either for personal advice or online services. We are also reachable by phone at 021 351 30 00 and by email at info@cdjv.ch.
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