The tension between power of care and provisional guardianship in incapacitated persons
During the course of a human life, it is not inconceivable that at some point the general state of health of an adult person may deteriorate significantly. This can progress to a point where the person in question is no longer able to carry out their daily tasks and manage their assets in general.
Several diseases, with dementia being a prime example, underlie the need for protective measures for these incapacitated persons.
The two most important protections to date are the healthcare proxy and the provisional administration.
The use of the power of care has been on the rise in recent years, in part because of the autonomy for the person to be protected. But how does this power of care compare to the provisional guardianship that can be imposed by the justice of the peace?
Care proxy as an extrajudicial protection measure
First, it is possible to protect an incapacitated person through a extrajudicial protection measure, through a healthcare proxy.
This legal figure was created with the law of March 17, 2013, reforming regulations on incapacity.
This statute provides for a more informal protection, in which the justice of the peace need not, in principle, come into play. In this way, the autonomy of the person to be protected is central and the person can easily appoint someone from the social environment (such as a son and/or daughter) to take certain actions regarding the asset.
The person to be protected must have the capacity of will at the time the care proxy is concluded and the care proxy is concluded with a notary. To be valid, the care proxy must also be registered in the Central Register of Powers of Attorney.
In other words, a health care proxy allows one to anticipate on any future incapacity to will.
However, it is important to note that the incapacitated person in this case is still is free to dispose of equity.
Provisional administration as a judicial protection measure
Alternatively, the justice of the peace could have a judicial protection measureimposes on an incapacitated person, when he is no longer able to perceive his own interests of a personal and/or property nature.
Article 492 of the Civil Code stipulates that this is done when it is determined that it is necessary and that existing legal or extrajudicial protection is not sufficient.
Appointing an administrator has the effect of formalizing the management of the assets of the incapacitated person and placing them under the supervision of the justice of the peace. This provisional administrator can be someone from the social network of the incapacitated person or a neutral third party.
Especially in the event of any dispute between family members or if adequate out-of-court protection is not yet in place, this regime proves its worth.
Relationship between power of care and provisional guardianship
But how do these two protection regimes relate to each other now, what happens in case of discussion and where is the line for a possible transition?
The basic principle is that an extrajudicial measure of protection is preferable to judicial protection. This principle is called in legal jargon the subsidiarity.
If the assets can be adequately managed without initiating proceedings before the justice of the peace; that is, by means of an existing power of care, there is no reason for the introduction of provisional administration.
Nevertheless, there are situations where the current power of care no longer provides adequate protection. Indeed, such extrajudicial protection measure can only cover acts of a proprietary nature and only limited personal matters.
A provisional order, on the other hand, can cover both property and the person as a whole.
However, this does not mean that in the event of transition to provisional guardianship, the care proxy necessarily loses its effect. Indeed, Article 492, paragraph 2 of the Civil Code provides that the extrajudicial protection continues to apply to the extent that it is compatible with the judicial protection measure.
However, the power of care can be replaced in its entirety by a provisional power of attorney if there are objections concerning the proxy or the execution of the power of care would be contrary to the individual interest of the proxy.
In any case, the justice of the peace will be the pivotal figure in any discussions and transition or preservation of the regime.
Do you have questions about this topic? Our specialists will be happy to advise you. Contact us at info@bannister.be or at 03/369.28.00
