Guardianship by Court Order, Mandate for future protection, exercise of the activity of legal trustee for the protection of persons

Law No. 1.474 of 2 July 2019 on the Guardianship by Court Order, Mandate for future protection and the exercise of the activity of legal trustee for the protection of persons, is the result of Draft Law No. 958, passed by the National Council on 24 June 2019 (following the Draft Law No. 209 adopted on 28 May 2015).

The legislator pursued the objective of “enriching Monegasque law, which currently operates mainly through tutorship, which is a measure of representation, and curatorship, which is a measure of assistance”. (Commission on Women’s and Family Rights, Report on Draft Law No. 958, 13 May 2019, p. 2.)

It is in line with Recommendation No. R(99) of the Committee of Ministers to Member States of the Council of Europe on Principles concerning the legal protection of incapable adults, adopted on 23 February 1999.

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SUMMARY

Law No. 1.474 introduces two new protective measures in the Civil Code:

• Guardianship by Court Order

This short-term legal protection measure allows an adult to be represented to perform certain acts. It is less restrictive than a tutorship or curatorship, the adult person retaining in principle the exercise of his or her rights.

• Mandate for future protection

The possibility of appointing a representative in advance allows the latter to act in place of and on behalf of the principal’s interests. The mandate does not cause the principal to lose any rights or legal capacity.

Articles 18 to 23 of Law No. 1.474 govern the professional exercise of the activity of trustee for the protection of persons (conditions laid down by Sovereign Order). Persons professionally exercising the functions of tutor and curator have 3 years to comply.

In addition, the Law amends the provisions of the Civil Code relating to tutorship and curatorship in the case of adults and minors.

The provisions of Law No. 1.474 will enter into force within 3 months of its publication in the Journal de Monaco on 5 July 2019.

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IN DETAIL

Main amendements of the Civil Code :

GENERAL PROVISIONS ON PROTECTIVE MEASURES FOR ADULTS:

Art. 410-2

Insertion : application for the nullity of a legal act by an agent authorised under a future protection mandate.

Art. 410-4

Applicability of one of the protection regimes where the adult is unable to look after their own interests due to an impairment of either their mental faculties or their physical faculties such as to prevent the expression of their will.
Certification of the impairment by a report from the doctor appointed by the guardianship judge.

Art. 410-4-1

Art. 410-4-2

A protective measure that is proportionate and tailored to the individual, which may only be ordered by a judge where strictly necessary and where the person’s interests cannot be adequately safeguarded through the application of ordinary law (legal representation, the respective rights and duties of spouses, matrimonial property regimes), through another, less restrictive judicial protective measure, or through a future protection order.

Art. 410-4-3

Unless otherwise provided, such measures shall be carried out by persons other than the court-appointed representative, on a pro bono basis.

JUDICIAL PROTECTION ("SAUVEGARDE DE JUSTICE")

Art. 410-9-1

In the course of proceedings for the appointment of a guardian or curator, placement under judicial protection for the duration of the proceedings, on the basis of a detailed medical certificate.
Required information to be included in the detailed medical certificate.
Hearing of the person concerned, who may be assisted by a lawyer ("avocat" or "avocat-défenseur").

Art. 410-9-2

Retention of the right to exercise rights, except in respect of acts for which a special representative has been appointed.
Action to set aside acts or commitments entered into by the protected person during the period of the measure (by way of rescission on the grounds of undue influence, or by way of reduction in the event of overvaluation).

Article 410-9-3

Appointment of a special representative to carry out specific acts required for the management of the assets of the person placed under court-ordered guardianship.
Annual management report.

Article 410-9-4

Effects of the power of attorney by which the protected person has appointed another person to manage their assets.
Taking the necessary protective measures to safeguard the assets of the person subject to judicial protection proceedings.

Article 410-9-5

Lifting of the judicial protection order.
The judicial protection order ceases to apply from the date on which a guardianship or curatorship order comes into effect, or if an application for such an order is refused.

Article 410-9-6

Decisions that are provisionally enforceable and entered in the register.
Enforceability against third parties.
Issuance of a certificate stating whether or not there is a decision placing an adult under judicial protection.

FUTURE PROTECTION MANDATE ("MANDAT DE PROTECTION FUTURE")

Article 410-37

Any adult or emancipated minor who is not under guardianship and who is no longer able to look after their own interests.
A person under curatorship, with the assistance of their curator.
A father and mother, or the surviving parent, on behalf of their minor child over whom they exercise parental authority, or on behalf of their adult child for whom they bear financial and moral responsibility.

Art. 410-38

The future protection mandate is subject to the provisions of Articles 1823 to 1849 of the Civil Code relating to mandates, insofar as they are not incompatible.

Art. 410-39

Registration of the mandate with a notary.
Revocation.
Obligation of information of the notary, with an update every five years.

Art. 410-40

Persons who may and may not be appointed as a representative.

Art. 410-41

Appointment of multiple representatives: joint performance of the mandate, assignment of a specific area of representation, and supervision of the representatives' actions by deputy representatives.

Art. 410-42

The future protection mandate takes effect following approval by the Court of First Instance.
Conditions relating to a mandate drawn up for oneself.
Conditions relating to a mandate drawn up for another person.

Art. 410-43

Hearing of the principal ("mandant").
Approval accompanied by the establishment of an additional guardianship ("curatelle" or "tutelle").
Partial approval.
Refusal of approval and the establishment of an additional guardianship.

Art. 410-44

Registration of the future protection mandate in an ad hoc register.

Art. 410-45

Execution of the mandate by the representative.
Appointment of a third party to carry out specific acts of asset management.

Art. 410-46

Definition of the representative's rights and obligations where the mandate applies to the protection of the individual.

Art. 410-47

Derogation from Article 1827 of the Civil Code concerning a mandate granted in general terms.

Art. 410-48

Inventory of the principal’s or beneficiary’s assets at the start of the guardianship.
Updates during the term of the mandate.
Preparation of an annual management account (regular, accurate and giving a true and fair view of the assets) and submission to the guardianship judge for verification.

Art. 410-49

Annual report by the representative to the guardianship judge on the personal circumstances of the principal or beneficiary and the actions taken.

Art. 410-50

Relinquishment of duties during the term of office.

Art. 410-51

Contesting the implementation of the future protection mandate

Art. 410-52

Acts and commitments falling within the representative's powers of representation are automatically void.

Art. 410-53

Termination for breach of contract ("rescision pour lésion") or reduction of liability in the event of excessive acts or commitments on the part of the principal or the beneficiary that do not fall within the scope of the representative's authority during the performance of the mandate.

Art. 410-54

Applicability of Article 410-24 regarding the annulment of acts performed before the judgment became enforceable.

Art. 410-55

End of the mandate’s implementation

Art. 410-56

Upon expiry of the term of the mandate or in the event of the representative's dismissal, the representative is required to keep available for a period of five years the inventory of assets, any updates, the last five management accounts and the documents necessary to continue the administration or to ensure the liquidation of the estate.

Art. 410-57

Law applicable to the existence, scope, modification and termination of powers of representation conferred by an adult in the absence of a specific designation: the law of the adult’s habitual residence; possible designations: the State of the adult’s nationality, the State of the adult’s previous habitual residence, or the State in which the adult’s property is situated, in respect of that property.
Law applicable to the exercise of powers of representation: the law of the State in which they are exercised.

Provisions of Law No. 1.474 governing the role of court-appointed guardians ("mandataires judiciaires"):

Art. 18

Only court-appointed guardians governed by the provisions of Law No. 1.474 may act in a professional capacity as a guardian ("tuteur", "curateur") or administrator ("administrateur").

Art. 19

A licence is granted by decision of the Minister of State, following the advice of the Director of Judicial Services.
The conditions for the grant and withdrawal of the licence are laid down by Sovereign Order.
The Directorate of Social Action and Assistance notifies the Directorate of Judicial Services of the grant of the licence.

Art. 20

Training and qualification requirements laid down by Sovereign Order.

Art. 21

Professional indemnity insurance.

Liability insurance covering damage caused by the insured person.

Art. 22

Subject to professional secrecy, except where the law requires or permits the disclosure of a secret, or for the purpose of exercising the rights necessary for defence in the event of criminal proceedings.

Art. 23

Remuneration and advances on remuneration to be borne in full or in part by the person subject to the protective measure; failing that, by the State in accordance with the conditions laid down by Sovereign Order.