Guardianship, curatorship or protection of the court: the differences

It is true that many circumstances come in the way of a person's faculties, which can make them unable to defend their very own interests.

Following which, the judge has the option of protecting the latter with a legal protection measure. Another person will be appointed to accompany him in the acts of life. However, the measure must be adapted to the autonomy of the person who needs to be protected, so that it is as less restrictive as possible.

Therefore, three different measures exist:

If you want to protect a loved one, this article explains the differences between the three measures in order to find the one that suits your situation the best.

What is the difference between guardianship, curatorship, or protection of the court?

The big difference between the three protective measures lies in the autonomy given to the protected person, but also in the purpose of the measures.

First of all, these three measures don’t have the same audience:

• Protection of the court is aimed at people who suffer from a temporary loss of autonomy.
• Curatorship targets those people who need continuous assistance or supervision during important acts of civil life. This measure can only take place if court’s protection cannot ensure sufficient protection.
• Guardianship concerns those people who need to be represented continuously in the acts of civil life due to an impairment of their long lasting mental or physical faculties. This measure can only be established if it is certain that neither the court’s protection nor the guardianship can ensure sufficient protection.

Due to a different audience, the measures don’t make the same impact depending on the constraints imposed by these:

• With the court’s protection, the protected adult retains the right to perform all daily life actions except those entrusted to the agent.
• With curatorship, the protected adult is assisted by the curator for acts of disposition (sale, loan, etc.). Curatorship is flexible depending on the autonomy of the person who needs to be protected.
• With guardianship, most actions are carried out directly by the guardian. This person represents the main protection in the acts of civil life. He collects the person's income and takes care of managing his expenses.

In all three cases, the protected person retains the right to vote. On the other hand, with curatorship and guardianship, the latter can no longer be elected.

The measures don’t have the same goal:

• The court’s protection is an urgent and temporary measure. It lasts a maximum of one year and can be renewed once, through the protection of a litigation judge. It can be set up pending the establishment of a curatorship or a guardianship.
• The curatorship lasts long and is set up for a maximum of 5 years, renewable for the same period. It can be renewed for a longer period if the alteration in the person's faculties seems irremediable, but which shall not exceed 20 years;

Guardianship is long-lasting and can be put in place for 5 or 10 years if the alteration in the person's faculties does not seem to improve. In the event of renewal, the duration must not exceed 20 years.

Let’s say that your parent is sick and is going through an alteration of his faculties during the treatment, the latter can be placed under the court’s protection. On the other hand, if the alteration turns permanent, the other protective measures are more suitable.

What is the procedure for placing under guardianship?

The request for placement under guardianship must be made by:

• the adult to be protected,
• his or her spouse, civil union partner or cohabiting partner (unless the living community has been discontinued),
• his descendants, ascendants, brothers, or sisters,
• his entourage,
• the person who has already been exercising legal protection in the event of guardianship or safeguard,
• the public prosecutor

It should be noted: Social or medical services can seize the public prosecutor.

It is then required to set an appointment with an approved doctor who shall examine the person who needs to be protected and draw up a medical certificate, which needs to be submitted to the Protection Litigation Judge.

 If you wish to opt for a guardianship, you must send your request via mail or on the website of the litigation judge for the protection of the court who is in the same place of residence as the person who needs to be protected, with the following documents:

• the cerfa request form n ° 15891 *03,
• the birth certificate and the protected person’s ID,
• the medical certificate.

Other documents can also complete the request such as:

• proof of family relationship between the applicant and the person who needs to be protected,
• a copy of the ID and address of the person who wishes to obtain family authorization to be the guardian.
• letters from family members accepting the appointment,
• documents on the situation of the person who needs to be protected: composition of his family, his living conditions, his social environment, his inheritance, his autonomy, etc...

The protection litigation judge hears the person who needs to be protected, but also his or her physician and relatives if need be. He also has the possibility of consulting experts and carrying out a social investigation.

It should be noted: Using a lawyer isn’t obligatory.  

The person in need of protection, the applicant and any lawyers are notified of the date of the non-public hearing. The judge chooses :

• to accept the placement under guardianship,
• to refuse the placement under guardianship,
• another protective measure.

If the latter provides for guardianship, the constitution of a family council of 4 to 6 members, made up of family or relatives and chaired by the judge, can be considered. The family council is optional. The council or the judge then appoints one or more guardians.

The guardian is often a family member. If this is not possible, a professional can be appointed.

If several guardians are appointed, one guardian may be responsible for the protection of the person and another for the management of the inheritance.

The family council or the judge has the choice of appointing a subrogated guardian to supervise the acts performed by the guardian or to replace him in the event of a conflict of interest. In the absence of a subrogate, an ad hoc guardian is appointed.

An appeal against the decision of the protection litigation judge (guardianship judge) can be lodged by the protected person and the applicant, within 15 days of the judgment or on the date of notification. In the case of refusal to put under guardianship, any person authorized to request the placing under guardianship has the possibility of appealing the decision.

What is the procedure for placing under curatorship?

People authorized to apply for guardianship can also apply for curatorship. The procedure with the protection litigation judge is identical, so are the documents which need to be provided.

Good to note: It should be noted that the procedure is the same regardless of the type of curatorship: enhanced curatorship, simple curatorship, arranged curatorship.

If accepted, the judge must then appoint one or more curators. He shall also appoint a subrogated curator or an ad hoc curator, under the same conditions as the appointments within the context of the placing under supervision..

What is the procedure for being placed under the protection of court?

There are two types of court protection: medical and judicial.

The protection through medical declaration is a result of a declaration made to the public prosecutor by:

• the person's doctor, accompanied by the favorable opinion of a psychiatrist,
• the doctor at the health facility where the person is located.

As for the court’s protection on the decision by the protection litigation judge, it can be requested by the same people as the guardianship or curatorship and accompanied by the same documents.

Please note: In case of emergency, it is possible that the hearing will not take place until after the judicial protection has been placed.

If the judge accepts the protection, he must designate one or more special representatives to carry out certain acts of representation or assistance.