The assets of vulnerable individuals

The law provides various ways of protecting the elderly, the sick and the disabled.

Therefore families have a number of legal devices with which to help and assist close relatives who have become vulnerable.

• How can a vulnerable person be protected?

  • Everything depends upon how vulnerable the person is. In the least serious situations, assistance and financial help may be sufficient to provide the essentials for daily living (help at home, income in the form of an allowance or benefit, insurance).

  • The vulnerable person may also need protection. Depending upon the seriousness of their condition, whether physical or mental, a device offering legal protection may also be considered, namely a sauvegarde de justice [device for the judicial protection of incapable adults], a curatelle [temporary guardianship] or a tutelle [guardianship].

  • Responsibility for putting in place any of these measures falls to the guardianship judge, who is based at the district court of the place in which the vulnerable person lives.

  • Since February 26, 2016, a new judicial measure, family authorization, makes it possible to represent a vulnerable close without having to go through a measure of guardianship or curatorship (Ordinance n ° 2015-1288 of 15/10/15 and Decree n ° 2016-185 of 23/02/16). Only the children, the grandchildren, the parents, the grandparents, the brothers and sisters as well as the partner of PACS or the concubine can benefit from the measure. The measure requires a family consensus.

• What is the role of the family?

  • Family members play a fundamental role for the vulnerable person.

  • They are best placed to initiate the appropriate measures.

  • They can count upon the advice and assistance of a certain number of individuals who are concerned with this field:
    - the guardianship judge with respect to certain functions that fall within the remit of the state, such as the protection of the vulnerable or the authorisation of certain measures;
    - the notaire for advice regarding family and private assets;
    - associations that play a key role in assisting the vulnerable.

• What measures should be taken?

  • In order to ensure the material well-being and future of a vulnerable person, the first step is to make sure that their assets are secure.

  • For example, the purchase of a certain type of asset will guarantee their financial independence. If the person to be protected has sufficient financial resources to pay the price, the asset may be put in their name.

  • In other cases (for example, if it is necessary to protect a very young child), a gift (with immediate effect) or legacy (coming into effect on the death of the testator) may be made.

• What form should the gift take?

  • There are many possibilities. Safeguards may be put in place in order to protect the asset.

  • The gift may, for example, be accompanied by a prohibition on sale or a right of reversion allowing the donor to recover it in the event of the premature death of the vulnerable person, if they have no children.

  • In every case, it is important to respect the rights of the other heirs (the children) to the reserved portion of the estate.

  • The law does not allow their statutory portion of the estate to be reduced (unless they agree in a family pact before a notaire).

  • This is why, when the person to be protected is a descendant, the notaire often advises their client to opt for an inter vivos division of the estate among the presumptive heirs [donation-partage]. This makes it possible to settle one's estate in advance of one's death, if certain conditions are fulfilled.

• How is a legacy made?

  • All legacies must be made in a will, which may take the form of a notarised instrument. It is therefore possible to make provision for a legs de residuo, i.e. a legacy naming a second beneficiary to which the item in question must pass on the death of the vulnerable person.

  • If the person to be protected has no children, thought must be given to the devolution of their property after their death.

• What is the advantage of splitting the ownership of an item?

  • If the objective is to provide the vulnerable person with an income, rather than to allow them to acquire an asset, it is possible to split the ownership of the asset, separating the bare ownership from the usufruct. They will then be relieved of the burden of managing the asset, which is the responsibility of the owner.

  • The vulnerable person could, for example, be the usufructuary of an apartment or a house. This usufruct would give the person the right to occupy the property, or to receive rent from it.

  • This situation could last for their whole life (life interest) or be of shorter duration, which would be set in advance (temporary usufruct). A limited form of usufruct might also be worth considering, namely the right to use and inhabit, which gives the holder the right to occupy a property without being able to either rent it to a third party, or to receive rent. This right may prove to be sufficient in certain situations.

• Would it be a good idea to set up a non-commercial partnership or company [société civile]?

  • Yes, by setting up a company or partnership, especially a non-trading organisation such as a management company [société civile de gestion], services company [société civile de moyens], or professional partnership [société civile professionnelle], you create an asset for the vulnerable person thereby ensuring that they have an income.

  • Decision-making powers would have to be entrusted to a manager, so that the vulnerable person did not have to worry about the management.