Strong weakness

Fri 26 June 2020, Philippe Ropenga Incapacity

An old person has subscribed a life insurance policy and changed the name of its beneficiaries. The lady has been assisted by a notary and a financial advisor when she was signing the paperwork. The matter does not seem suspicious, does it? Let us assume that the lady signed the documents during her stay at a hospital. What do your instincts tell you? Let us add that the hospital's geriatrician told the two practitioners that the lady's very bad kidney condition impaired her sanity. How do you feel about it? These are some of the facts of a case¹ decided by the criminal chamber of the French Court de cassation, i.e., the supreme court that deals with civil, commercial, and criminal cases. The outcome of this matter follows legal common sense and involves legal concepts that may not be easy to notice by foreign practitioners. One has to look behind formalities to see what accountability means in incapacity cases.

1 Behind formalities

This case shows that practitioners have to look behind formalities to make sure that the intention of the vulnerable person has been taken into account (1.1). Formalities can be used to give a clear picture of a given situation. Courts make sure that this picture reflects reality (1.2).

1.1 Facts and intention

Life insurance policies have a peculiar status since they are not part of the succession as it has been seen here². Hence, some people try to be appointed beneficiary of a live insurance policy when they know that its subscriber is weak. Courts are used to this scenario. Article 223-15-2 of the French penal code deals with an offence known as fraudulent abuse of a person’s ignorance or weakness in the Legifrance translation that can be found on legifrance.gouv.fr . Let us read its translation of the first paragraph of the said Article.

Fraudulently abusing the ignorance or state of weakness of a minor, or of a person whose particular vulnerability, due to age, sickness, infirmity, to a physical or psychological disability or to pregnancy, is apparent or known to the offender, or abusing a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgement, in order to induce the minor or other person to act or abstain from acting in any way seriously harmful to him, is punished by three years' imprisonment and a fine of €375,000.

This provision requires to prove the intention to abuse someone who is in a state of weakness. This state of weakness must be known by the offender. The Court of Appeal has found the defendant guilty. Another notary and a financial advisor have insisted to get the paperwork signed despite the objection of the hospital's geriatrician. The latter explained that an acute kidney pathology impaired the patient's clarity of mind. The prosecuted notary has asked the two practitioners to get the paperwork signed. The public officer and his colleague have made sure that the ill lady received proper financial information before signing the paperwork. This case is a bit peculiar since due to the intervention of two practitioners in the patient's room during the signature process, the paperwork is perfect from the formal point of view. These formal precautions helped the Court of Appeal to establish the notary's intention to fraudulently abuse of the patient's weakness. It is not always as easy to prove the defendant's intention. The Cour de cassation has nonetheless paid a great attention to facts.³ The supreme court has used its power to judge the factual analysis of the Court of Appeal to put the spotlight on facts related to the context of the deed. The accused notary has claimed that the Appeal judges had disregarded the probatory force of the deed done by his colleague who assisted the lady in her room. Nevertheless, the Court the cassation focused on his behaviour rather than on the deed itself.

Formalities have been set aside in this case. This reveals the tight connection between formalities and reality.

1.2 Formalities and reality

The paperwork signed is perfect from the formal point of view. Not only has the lady receive professional financial advice regarding her decisions but a public officer can prove the deed was well done. A very formal approach is typical to notaries who have a monopoly on modifications regarding on the land register and can take care of other formalities. A case that has been analysed here⁴ has clearly shown the limits of a mainly formal approach of vulnerability. The Cour de cassation has ruled that meeting requirements to sell the property under curatorship does not preclude a person from claiming that the sale was null because of unsoundness of mind. An avocat is not a public officer and helps a client to find a solution that matches his situation by considering issues that cannot be solved only by taking care of specific formalities. This is exactly what the Cour de cassation did in the case that is being analysed. It stated that the appeal judges had noted that the lady had lost interest in life and had sight and locomotion difficulties. The Court of Appeal noted that the defendant knew the lady's health issues. It underlined that her kidney condition required expensive care and that she had no interest in subscribing to a life insurance policy for the benefit of the defendant's relatives.⁵ The supreme jurisdiction has used facts to uncover the person behind the subscriber. Cross-border estates raise several technical issues that tend to overshadow the person of the testator or donor. I encourage people to consider successions beyond formalities as you know.⁶ This approach is not only respectful of stakeholders and helps to grasp a matter in its entirety but also helps the practitioner to find the simplest technical solution to a given matter.

It has been seen that formalities might overshadow the intention of a vulnerable person. Intention in incapacity cases is clearer when one looks at facts that reveal the context of a deed. Let us see that context can be used to hold someone accountable for what he has done to a vulnerable person.

2 Accountability

Informal weakness (2.1) has been combined with formal accounts to hold the defendant accountable (2.2).

2.1 Informal weakness

According to the Court of Appeal, the notary's insistency on having the paperwork signed has delayed the patient's transfer to another hospital by the emergency services. The aggravation of her condition required to move her to a critical care unit. One understands that a person who is about to be moved to a critical care unit is weak. The lady was weak when she signed the paperwork. This is obvious. A technical point may however be less obvious. The geriatrician has mentioned that the lady's condition affected the clarity of her mind. The Cour de cassation has noted his objection but has not relied on unsoundness of mind to decide the case. Proving unsoundness of mind is unnecessary in cases of abuse of weakness.⁷ A claim based on unsoundness of mind has to be supported by pieces of evidence that show that a given disorder caused the unsoundness of mind that affected a person when he was doing an act. This is what the geriatrician has done in an attempt to dissuade the notary and the financial from having the paperwork signed. He has argued that her acute kidney pathology affected the patient's clarity of mind. This is not how the supreme court has proceeded. It mentioned the physiological and psychological general condition of the lady and added the geriatrician's objection to this overall picture. This general condition amounts to weakness. The defendant was aware of this condition when he organised the signature. It easier to prove weakness than unsoundness of mind. Nevertheless, one should bear in mind that proving the intention to abuse is not always as easy as in this case. Weakness is less formal than unsoundness of mind in the sense that weakness refers to a general condition rather than to the effect of a specific medical disorder.

Let us see that weakness informality is combined with formal accounts.

2.2 Formal accounts

Accountability in law refers today to compliance and formal obligations. It may therefore seem strange to use this term in a criminal context, especially in French law. The English term has extensively been used to describe formal requirements designed to assess compliance of data use, for example. It has no French equivalent with this meaning. Nevertheless, Equity knew how to hold someone accountable long before the introduction of the 2016 EU General Data Protection Regulation.⁸ Accounts record anything that has been done with goods including sums of money. They can be used to see whether someone has acted in the interest of someone else. This is what the Cour de cassation did in this case. It approved the Court of Appeal for having found that signing the paperwork was not in the lady's interest since she had low income, had put a fourth of her assets in bank into the policy while she needed her funds to be available to pay for expensive medical care and would have to pay penalties to withdraw them. Defendant's relatives were the beneficiaries of the insurance policy. It is interesting to compare this case with a previous one that has been analysed on this blog.⁹ French legal practice pays a great attention to structural and formal issues in the context of incapacity. French cases in the field of trusts and estates do not treat interest as a core notion. It does not mean that interest is irrelevant but that interest is not tested as in English trust law. French approach of incapacity is very different from that of English law.¹⁰ It appears that French judges may rely on the charge of abuse of weakness to tackle common abuses related to life insurance policy.

It has been seen that protecting the vulnerable person from the legal point of view sometimes requires not to look for a medical disorder but to focus on the general condition. The practitioner can thus spot weakness that is informal. He should also check the accounts of the vulnerable person to make sure that they support his claim.

In brief, vulnerability is a multi-faceted notion that is wider than incapacity.

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