Guardianship is a measure taken by an authority to protect a person. Its aim is to ensure assistance and protection for those in need of help.
There are different types of guardianship:
Guardianship of Assistance (Art. 393 CC)
Guardianship of Representation (Art. 394 CC)
Guardianship of Cooperation (Art. 396 CC)
General Guardianship (Art. 398 CC)
In this article, we will discuss the general principles of adult protection law, followed by an examination of the different types of guardianship.
The General Principle of Adult Protection Law
Generally, the adult protection authority must establish a guardianship to safeguard the interests of the individual. Such a measure, however, restricts a person's freedom and should only be imposed when necessary. On the other hand, guardianship can be waived if assistance is sufficiently provided by the individual's family (e.g., parents, relatives) or by private public benefit organizations or state social aid institutions.
When guardianship is necessary, it must be tailored to the individual concerned and should not alter their legal status more than necessary.
The adult protection authority acts either on its own initiative or upon the request of a doctor or another person close to the person lacking discernment (Art. 381 para. 2-3 CC). The law requires a state of weakness, such as psychological disorders, or if the interests of the person lacking discernment are compromised or at risk (Art. 376 para. 2 CC and Art. 390 CC).
Regarding the content of guardianship, the adult protection authority must specify it in each particular case, and the guardian’s intervention is limited to the tasks assigned to them, with the person concerned remaining autonomous in other areas. Moreover, the authority can combine different forms of guardianship.
When guardianship is no longer necessary, it should be terminated either at the request of the person concerned or one of their close relatives, or ex officio.
When Can the Adult Protection Authority Establish Guardianship of Assistance?
The adult protection authority may establish guardianship of assistance when the person needs help to perform certain actions, such as filling out forms, asserting rights, or concluding contracts. However, this protective measure does not limit the exercise of the person's civil rights. For it to be effective, the person concerned must give consent and act with the guardian.
This measure is not coercive as the person continues to act autonomously, and the guardian’s role is limited to supervising and advising (Art. 393 CC).
When Can the Adult Protection Authority Require Guardianship of Representation?
The adult protection authority establishes guardianship of representation when a person cannot perform certain actions themselves and must be represented by a guardian, for example, to sign a lease or purchase furniture. This protective measure may also be required when a person is passive in certain areas. In this case, the guardian becomes the legal representative of the person for the tasks assigned by the authority. However, if deemed necessary, the adult protection authority may restrict the person’s civil rights for certain acts, such as entering into an employment contract. The authority can also assign the guardian to manage income or assets or both to protect the person. It can also prevent the person from disposing of certain assets, such as real estate, but this must be noted in the land register (Art. 394 and Art. 395 CC).
When Can the Adult Protection Authority Establish Guardianship of Cooperation?
The adult protection authority resorts to this measure when there is a risk that a person may perform legal acts contrary to their interests, such as incurring financial obligations. In this type of guardianship, the guardian must act with the person under guardianship. However, the person under guardianship cannot act alone to exercise certain civil rights. They must obtain the guardian's consent to perform certain legal acts, which can be either explicit or implicit. The person’s rights are limited by law concerning these acts, meaning that if one party acts without the other, the act becomes null and void.
The adult protection authority must precisely define the legal acts requiring the guardian’s consent (Art. 396 CC).
It is worth noting that these three types of guardianship can be combined.
When Can the Adult Protection Authority Order General Guardianship?
The adult protection authority establishes this measure when a person needs assistance due to a permanent incapacity for discernment or any mandate due to incompetence. The appointed guardian must handle all legal acts for the person under guardianship, such as managing assets, handling accounts, etc., except for personal rights where representation is excluded, such as drafting a will.
This measure is coercive as the person under guardianship is fully deprived of the exercise of civil rights (Art. 398 CC).
These measures end once the person regains their faculties.
If you would like more information, we would be pleased to welcome you to the Valentin Legal Consultation.
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