Incapacity, estate management, family disputes

Wed 16 November 2022, Philippe Ropenga Incapacity Estate management

You know how much I value trusts for the ability they give to look directly at the beneficiary's interest.¹ Trusts have definitely changed the way I look at succession disputes even when only French law is involved.² It has been seen in an earlier post that when a family dispute involved a deed, basic elements had to be taken into account.³ The mandate for future protection is a deed that enables a person to decide who would take care of his or her interests if he or she is unable to do so alone. Article 448, §1 of the French civil code provides that when a curator or a tutor should be appointed, the carer who has been designated by the incapacitated person, then sound of mind, should be appointed as curator or tutor. The carer designated by the incapacitated person may however not be appointed if this person refuses to be appointed or when such a designation is contrary to the interest of the incapacitated person. The provision is interesting because it requires to consider the intention of the incapacitated person before appointing someone else than the person designated by the incapacitated person. This issue is interesting because it requires to combine incapacity⁴ with estate management⁵. A claim has recently been brought regarding the lack of base légale, i.e., of a ruling that applied Article 448, §1 to set an appointed carer aside to preserve the interest of the incapacitated person. As you know from an earlier post⁶, a manque de base légale refers to an incorrect or insufficient factual analysis. The French Cour de cassation that is the supreme court that deals with civil, commercial, and criminal matters does not assess pieces of evidence. It had to decide in this case whether facts supported the decision to set the designated carer aside. It found that the Court of Appeal had noted that despite the mandate for future protection, a curator and later a tutor had to be appointed by court because of persistent disputes and due to an atmosphere of suspicion among siblings.⁷ The supreme court then mentioned relevant facts:

• The children of the incapacitated person had been arguing not only about the management of the estate but also about the care that their mother needed.
• The siblings, including the person designated by the incapacitated person had moved her to new accommodations between 2018 and 2019 because of these disputes; this had been harmful to the incapacitated person because of her condition.
• Once the designated person had been set aside, the incapacitated person had found a stable accommodation at her sister's place.

The supreme court noted that the Cour of Appeal had taken the intention of the incapacitated person into account, approved the factual ground of the appeal case and state that the assessment of facts was not a matter of a cassation and therefore had to be left to lower courts.⁸

One can see that these matters often boil down to practicalities. The interest of the protected person requires to set the person designated by the latter aside when such a designation does not benefit to the latter while another solution is beneficial. One may notice that practicalities in estate management often involve resource allocation and value. One can handle these issue directly and address them quickly with tools derived from alternative dispute resolution.⁹ These are helpful even when a solution cannot be found outside court since they require to underline facts that have to be taken into account by the court to set the designated carer aside.

In brief, one finds the interest of the protected person by looking at two elements: the intention of the latter and practicalities that are often the starting point of estate management disputes.

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