Draft law No. 277 on strengthening the rights of adults who may be placed under guardianship, curatorship or judicial protection

Draft law No. 277 on strengthening the rights of adults who may be placed under guardianship, curatorship or judicial protection was received by the National Council on 25 March 2026.

Articles 410-2° to 410-57 of the Civil Code govern measures for the protection of adults: guardianship ("tutelle"), curatorship ("curatelle"), judicial protection ("sauvegarde de justice") and future protection mandate ("mandat de protection future"), following the enactment of Law No. 1.474 of 2 July 2019.

Purpose of draft law No. 277

Draft law No. 277 aims to address the shortcomings of the Civil Code and the Code of Civil Procedure in relation to guardianship, curatorship and judicial protection, with regard to fundamental rights and freedoms (“fundamental requirements of the adversarial process and [the] Rights of the Defence”) as well as human dignity (Explanatory Memorandum to draft law No. 277):

• to strengthen the procedural safeguards for the adult concerned,
• to clarify the procedural status of the adult concerned and the appeal against protection orders,
• to improve the practical effectiveness of the system for the protection of adults.

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SUMMARY

Draft law No. 277 amends the Civil Code and the Code of Civil Procedure:

• Obligation to summon the adult concerned in person to the hearing deciding on the establishment of a guardianship, curatorship or judicial protection order, subject to exceptions;
• Obligation to personally serve the adult concerned with the judgment establishing the guardianship, curatorship or judicial protection order relating to them;
• Right to be assisted by a lawyer from the stage of the summons, who may be appointed by the court;
• Obligation to personally serve the protected person with any judgment relating to guardianship, subject to strictly regulated exemptions which are open to appeal;
• Conduct of a social and financial investigation into the adult subject to protective proceedings;
• Possibility of authorising, by court order without a hearing, “acts of asset management in the best interests of the adult”.

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IN DETAIL

LThe provisions of draft law No. 277 are as follows:

New Article 410-4-4 of the Civil Code:

• Obligation of the Court of First Instance (TPI) or, where applicable, the guardianship judge, prior to any decision to initiate guardianship, curatorship or judicial protection proceedings, to summon the person whom it is proposed to protect.
• The Explanatory Memorandum states "that summoning an adult for whom protection is being considered in no way implies that they are obliged to attend the court hearing ruling on their case, nor to defend themselves. However, giving them the opportunity to be heard will provide the court with a valuable means of assessing their autonomy. Conversely, it is reasonable to assume that if the adult is genuinely unable to be heard, they will not attend the said hearing.”
• The summons would be sent to the adult concerned by registered post with acknowledgement of receipt, at least 15 days before the date of the hearing, to their last known address and, where applicable, to the place of their hospitalisation.
• The summons should state the purpose of the proceedings, the date, time and place of the hearing, as well as the right of the person concerned to be assisted by a solicitor or defence counsel of their choice.
• The TPI or the guardianship judge may not rule unless the person whose placement is being considered has been duly summoned, except in very exceptional circumstances under the conditions set out in the second paragraph of Article 410-12 of the Civil Code (a specially reasoned decision, based on a detailed medical opinion).

The Explanatory Memorandum draws on:

• European Court of Human Rights (ECHR) case law, from which it follows that "national courts may not rely exclusively on abstract medical assessments to restrict a person’s legal capacity and must carry out a comprehensive and individualised examination of the circumstances of the case" (ECHR, Case of Ivinović v. Croatia, 18 September 2014, Application No. 13006/13);
• Monegasque case law illustrating the decisive impact that hearing the person concerned may have on the court’s assessment and the outcome of the proceedings, and “conversely, the risk inherent in any proceedings in which the decision relies very substantially on a medical assessment, without the person having been given the opportunity to put forward their observations" (TPI, 8 July 2022; CA, 11 August 2025);
• comparative law (French and German) regarding the personal hearing of the person concerned prior to a placement decision.

New Article 410-4-5 of the Civil Code:

• Obligation to notify the protected person of any decision ordering the establishment of guardianship, curatorship or judicial protection. The notification would also be sent to the appointed guardian, curator or special representative, to the applicant, and to the public prosecutor.
• The notification would be sent by registered post with acknowledgement of receipt within eight days of the decision being handed down.
• The notification should specify the remedies available and the time limits for bringing an appeal, as well as the protected person’s right to be assisted by a lawyer (avocat or avocat-défenseur) to ensure their defence.
• In the absence of notification in accordance with these requirements, the statutory time limits for appeal would be deemed not to run in respect of the protected person.

New Article 410-4-6 of the Civil Code:

• Right of the person against whom proceedings have been brought for the purpose of establishing guardianship, curatorship or judicial protection to be assisted by a lawyer at all stages of the proceedings.
• Where the person concerned is unable to instruct a solicitor, in particular due to the effect of a deprivation of legal capacity, the guardianship judge could, upon application by the person concerned, their relatives, or the public prosecutor, appoint a lawyer of their own motion.

Replacement of Article 410-12 of the Civil Code:

• Obligation to notify the person under guardianship of any judgment relating to guardianship in accordance with the conditions set out in Article 410-4-5.
• In exceptional circumstances, the court coukd waive this notification by issuing a specially reasoned decision, based on a detailed medical opinion concluding that such
  information would seriously harm the health of the person concerned. In such cases, the court shall determine the person to whom this notification is to be made (a lawyer chosen by the person concerned or appointed by the court).
• The decision to waive notification would be subject to appeal in accordance with the provisions of ordinary law.

New Article 410-4-7 of the Civil Code:

• Any judgment ordering the establishment of guardianship, curatorship or judicial protection measures, handed down in the absence of the adult under protection, could be subject to a third-party challenge or an appeal, at the latter’s discretion.
• Failure to duly summon the person concerned would constitute grounds for the judgment to be set aside.

Addition to Article 410-5° of the Civil Code:

• The guardianship judge or public prosecutor could order a social and financial investigation to be carried out by the Department of Social Assistance and Action
  or by the social worker at the Public Security Department.
• The Explanatory Memorandum states that this option was previously common practice, “abandoned due to a lack of statutory basis, leaving administrators in a difficult position as they had to "feel their way" in tracing their ward’s assets.”

Addition to Article 837 of the Civil Procedure Code:

• Throughout the duration of the protective measure, the person responsible for the protection of the adult may submit an application to the guardianship judge seeking authorisation to carry out any act of asset management in the best interests of the adult in question.
• The guardianship judge would rule on the appropriateness of such an act by means of an order on application ("ordonnance sur requête").
• The Explanatory Memorandum states that this is intended to “introduce a new degree of flexibility (...) without the need for a court hearing to be held”, and that the order on application “will enable the resources of the courts and tribunals of Monaco to be conserved”.

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