Protecting in practice

Tue 15 October 2019, Philippe Ropenga Incapacity

A post published on this blog in June discusses trends in incapacity law.¹ It has been said that English law and French law followed different approaches. Let us turn from theory to practice. It will be seen that any protection regime requires the carer to be cautious (1) and to manage the will of the protected person in a way that may satisfy courts (2).

1 The cautious carer

French protection regimes are diverse (1.1) and are based on one principle (1.2).

1.1 A diversity of protection regimes

Protection regimes will be mentioned as based on court intervention or on intention to keep this post as short as possible.²

Court-based protection regimes are:

• Sauvegarde de justice or judicial protective supervision. It enables someone to bring a claim to prevent a person from making specific acts or to have an act done by the protected person annulled.³
• Habilitation familiale that allows a person to make some acts in the interest of a vulnerable person.⁴ Article 459 of the French civil code in its 2019 version favours this measure over curatorship and tutorship.
• Curatorship also known as simple curatorship that enables the protected person to make significant acts with the assistance of a curator.⁵
• Strengthened curatorship that enables the curator i.a. to manage the finances of a person under curatorship by using a special bank account.⁶
• Tutorship can only be used when someone has to act permanently on behalf of a vulnerable person.⁷

It is important to note that even under court-based protection regimes, no one can make strictly personal acts on behalf of the protected person.⁸

Beside court-based protection regimes, there also are two regimes based on intention. The second type of regimes is inspired by trusts.

• The posthumously effective mandate has not been introduced to be used in the context of legal incapacity but to support an heir who may not have enough experience in managing complex pieces of property such as a family company. It has already been analysed on this blog.⁹

• The mandate for future protection can be concluded in the interest of an adult or that of a minor. It can be established in the form of a deed signed by the principal or that of a notarial deed. When the mandate is concluded by the parents or by the surviving parent of a minor or overage child for his protection, it has to be written in a notarial deed.¹⁰ The notarial mandate has been introduced as a trust-like device. It can also be concluded for an adult and gives more power to the agent than to a tutor. Article 490 of the French civil code provides that:

  As an exception to Article 1988, the mandate, even if in general terms, includes all the patrimonial acts that the tutor has the power to accomplish alone or with an authorization.

  Nevertheless, the mandatary may accomplish an act of disposition under gratuitous title only with the authorization of the judge of tutorships.

  The agent accounts for his management to the notary who has established the mandate. The latter reports anything suspicious to the judge of tutorships.¹¹

  This diversity of regimes attracts the attention of the trust practitioner. Let us however not forget a basic principle of French incapacity practice.

1.2 A basic principle

The French Cour de cassation, i.e. the French supreme court that deals with commercial, civil, and criminal cases has decided a case regarding estate management in the context of a notarial mandate for future protection.¹² The agent has provided incomplete accounts that were not precise and has omitted to submit the principal's tax return. The Court of Appeal used its power to judge facts and decided that the principal's financial interests have not been preserved by the agent. It relied on Article 483, º4 of the civil code to revoke the mandate. It also relied on Article 485, §1 of the said code to place the vulnerable person under strengthened curatorship, declare that the agent would only take care of the person and to appoint an agent to manage the principal's finances. The decision has been challenged i.a. on the ground that the vulnerable person's intention to appoint an agent had been disregarded. It has also been argued that the Court of Appeal had not established the lack of care for the agent's financial interests. The Cour de cassation had thus to decide whether appreciating the principal's financial conduct on a factual basis amounted to establishing that the principal's financial interests had not been safeguarded. The supreme court has reminded the public that the preservation of the principal's financial interest was a matter of fact that was left to lower courts to decide.¹³ It has noted that the appeal judges had noticed inaccuracies in the accounts as well the omission of a wealth tax return and had therefore deducted from the facts that the principal's financial interests had not been preserved. No matter what protection regime has been chosen, the preservation of one's financial interests requires to take care of accounts and to complete administrative tasks.

It has been seen that any person who manages someone els's estate should take care of accounts and make sure that administrative duties regarding the estate are fulfilled prior to the due date. The solution of this case is straightforward from a French perspective. It also is interesting from a comparative perspective.

2 The will and the way

This case allows to see that in the context of incapacity, the subjectivity of intention (2.1) may easily be counterbalanced by the objectivity of accounts (2.2).

2.1 The subjectivity of intention

The principal has designated the agent and wanted him to take care of his financial interests. The Cour de cassation has previously made clear that the intention of a disabled person should be respected.¹⁴ It has been argued that by revoking the agent and placing the principal under strengthened curatorship, the Court of Appeal disregarded the principal's intention and had violated Article 12 of the Convention on the Rights of Persons with Disabilities 2006. This may seem strange to an Anglo-Saxon lawyer since he may think that the interest of the agent has not been preserved in this case. French incapacity law however is focused on running smoothly the structure that is designed to protect the vulnerable person. It considers the person with some distance. This is why one can see claims based on this international convention in cases where administrative requirements regarding the incapacity seem to have been met.¹⁵ Furthermore, intention as opposed to interest is highly subjective. Hence, French practitioners may not feel comfortable with it.

Since intention is uneasy to apprehend, a French lawyer may prefer the objectivity of accounts.

2.2 The objectivity of accounts

It is always difficult to decide a case by relying on purely subjective elements. Lawyers and judges may thus prefer to tackle an issue by relying on institutions that follow rules that are partially independent from a person's intention such as a corporate structure. Accounts and structural issues are complex but are relatively easy to solve once the practitioner knows where to start and where to go because formal, procedural, or administrative requirements reduce the number of available solutions. Matters involving incapacity or successions are different because the practitioner has to take the family context into account to solve the matter, and he does not know it well beforehand. An English trust practitioner will have less difficulty than his French colleague in handling such cases since he will rely on the interest of a beneficiary or that of the protected person. French legal education does not develop this precious ability. Nevertheless, it is possible to move a step backward to consider the interest in French law as well since this attitude is fostered by education rather than by black letter law.¹⁶

It has been seen that French incapacity practice was focused on accounts rather than on the vulnerable person's intention.

In brief, the cautious carer as understood by French incapacity practice is a person who mainly takes care of the vulnerable person's accounts and completes administrative tasks before the deadline.

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