Adult guardianship lawyer

In France, la « tutelle » refers to a person to act and make decisions on behalf of an adult with incapacity. It’s a legal shield.

There are 2 different « tutelle »:

• This type of guardianship order allows a third party to take welfare and/or financial decisions in respect of an adult who lacks capacity (such as people diagnosed with Alzheimer or dementia).
• This type of guardianship order allows a third party to care of a child or young person in long-term care with someone other than their parents (abandoned children for example)

To learn more about child guardianship order, click on the link below:

https://www.pacislexisfamilylaw.com/en/

This type of guardianship order is mid-way between « la tutelle” and “La sauvegarde de justice ».

This type of guardianship can be in relation to personal welfare and financial matters, but the person can still take action and make some decisions.

This type of guardianship order is for adults who may be vulnerable because of a permanent or temporary disability or illness and need someone to make personal decisions for them.

This type of guardianship order is for adults who may be vulnerable and in that case the guardian is a family member.

A “Mandat de protection future”, also called Lasting Power of Attorney (LPA) enables individuals over 18 with capacity to designate someone to have decision-making powers (for health and welfare, and/or property and financial affairs) on their behalf when capacity is lost.

Basically, a ‘Mandat de protection future’ or LPA is about anticipation.

Guardianship orders is for adults with disability or with mental health issues and cannot care for themselves. A lasting power of attorney is before everything goes wrong. You can select the person who will have power.

The document goes into effect only when the individual can’t not make decisions for themselves further down the line. Therefore, with this type of order, you don’t have to go through a guardianship order process.

Pros:

• Protects vulnerable individuals: Tutelle ensures that individuals who are incapable of managing their own affairs due to age, illness, or disability are protected and taken care of.
• Legal oversight: Tutelle involves legal supervision, which helps prevent abuse or exploitation of the vulnerable person by caregivers or family members.
• Financial management: Tutelle allows for the management of the person’s financial affairs, ensuring that their assets are properly handled and used for their benefit.
• Healthcare decisions: In cases where the person is unable to make healthcare decisions, the guardian appointed through tutelle can make decisions on their behalf, ensuring they receive appropriate medical care.
• Ensures basic needs are met: Tutelle ensures that the basic needs of the person under guardianship, such as housing, food, and healthcare, are met.

Cons:

• Loss of autonomy: One of the primary drawbacks of tutelle is that it involves a loss of autonomy for the individual under guardianship. They may have limited control over their own affairs and decisions.
• Potential for conflicts: Tutelle can lead to conflicts between the person under guardianship and their guardian, especially if the individual disagrees with decisions made on their behalf.
• Stigma: Being placed under tutelle may carry a stigma, as it implies that the individual is incapable of managing their own affairs.
• Complex legal process: The process of establishing tutelle can be complex and time-consuming, involving legal proceedings and assessments of the individual’s capacity.
• Costs: There may be financial costs associated with establishing and maintaining tutelle, including legal fees and expenses related to the administration of the person’s affairs.

Overall, while tutelle serves an important protective role for vulnerable individuals in France, it also raises concerns about autonomy and potential conflicts, highlighting the need for careful consideration and oversight in its implementation.

Pros:

• Preserves some autonomy: Unlike tutelle, curatelle allows the person under protection to retain some autonomy and decision-making capacity. They may still be able to make certain decisions regarding their personal affairs, although under supervision.
• Tailored to individual needs: Curatelle arrangements can be tailored to the specific needs and capabilities of the person under protection. It offers a more flexible approach compared to tutelle, allowing for a level of customization based on the individual’s situation.
• Less restrictive: Curatelle is generally less restrictive than tutelle, as it only intervenes in areas where the person lacks capacity, rather than taking full control of their affairs.
• Maintains dignity: Because curatelle preserves some degree of autonomy and self-determination, it can help maintain the dignity of the person under protection, as they are still involved in decision-making to some extent.
• Less costly and complex: Curatelle may be less costly and complex to establish compared to tutelle, as it involves a lower level of intervention and oversight.

Cons:

• Limited protection: While curatelle provides some level of supervision and assistance, it may not offer sufficient protection for individuals with more severe incapacities or vulnerabilities.
• Potential for exploitation: There is a risk that individuals under curatelle may still be vulnerable to exploitation or abuse, especially if their decision-making capacity is only partially impaired.
• Conflicts and disagreements: As with tutelle, conflicts and disagreements may arise between the person under protection and their curator, particularly if there are differences of opinion regarding decision-making.
• Stigmatisation: Being placed under curatelle may still carry a stigma, as it implies a degree of incapacity or dependency on others for decision-making.
• Complex legal process: While less complex than tutelle, establishing curatelle still involves legal proceedings and assessments of the individual’s capacity, which can be time-consuming and burdensome.

Overall, curatelle offers a balance between protecting the interests of individuals who lack autonomy and preserving their dignity and autonomy to some extent. However, it also poses challenges in ensuring adequate protection while respecting the individual’s rights and preferences.

Pros:

• Immediate protection: Sauvegarde de justice can be implemented quickly to provide immediate protection to individuals who are at risk, without the need for lengthy legal proceedings.
• Temporary nature: It is a temporary measure, which means that it can be applied for a limited period until a more permanent solution, such as tutelle or curatelle, is established. This allows for flexibility in responding to changing circumstances.
• Preservation of autonomy: Sauvegarde de justice aims to preserve the autonomy of the individual to the extent possible while providing necessary protection. Unlike tutelle or curatelle, it does not involve full or partial guardianship, allowing the person to retain more control over their affairs.
• Legal oversight: While under sauvegarde de justice, the person’s affairs are overseen by a judicial officer, who ensures that their rights and interests are protected. This helps prevent abuse or exploitation by caregivers or others.
• Less burdensome: Compared to tutelle or curatelle, sauvegarde de justice is generally less burdensome and intrusive, as it is intended to provide temporary support without significantly restricting the person’s autonomy.

Cons:

• Limited scope: Sauvegarde de justice may not provide sufficient protection for individuals with more severe incapacities or vulnerabilities, as it is a temporary and relatively light-touch measure.
• Potential gaps in protection: While sauvegarde de justice offers immediate protection, there may be gaps in coverage or oversight during the transition to a more permanent arrangement, such as tutelle or curatelle.
• Uncertainty for the individual: Being placed under sauvegarde de justice may create uncertainty and anxiety for the individual, as it involves a formal acknowledgment of their incapacity and potential loss of control over certain aspects of their life.
• Limited decision-making capacity: While sauvegarde de justice aims to preserve the autonomy of the individual, it may still involve limitations on their decision-making capacity, particularly in areas where they are deemed to be at risk.
• Potential for abuse: While sauvegarde de justice is intended to protect individuals from abuse or exploitation, there is a risk that the temporary nature of the measure may be exploited by individuals seeking to take advantage of the person’s vulnerability.

Overall, ‘sauvegarde de justice’ serves an important role in providing immediate protection to individuals at risk, but it also raises concerns about the adequacy of protection and the potential impact on the individual’s autonomy and well-being.

Pros:

• Family involvement: Habilitation familiale allows for the involvement of family members in the decision-making process, which can help ensure that the person’s best interests are considered and that their preferences are respected.
• Preservation of familial relationships: By empowering family members to act on behalf of the incapacitated person, habilitation familiale helps maintain familial relationships and support networks, which are important for the person’s well-being.
• Flexibility: Habilitation familiale offers flexibility in terms of who can be appointed to manage the person’s affairs. It can involve one or more family members, depending on the needs and circumstances of the individual.
• Less intrusive than legal guardianship: Compared to tutelle or curatelle, habilitation familiale is generally less intrusive, as it involves empowering family members to assist the person with their affairs rather than appointing a formal guardian.
• Cost-effective: Habilitation familiale may be a more cost-effective option compared to formal guardianship arrangements, as it involves working with existing family members rather than appointing external professionals.

Cons:

• Potential for conflicts: Habilitation familiale may lead to conflicts or disagreements among family members regarding decision-making or the management of the person’s affairs.
• Limited oversight: Unlike tutelle or curatelle, which involve legal supervision, habilitation familiale may not provide the same level of oversight and protection for the incapacitated person, which could increase the risk of abuse or exploitation.
• Dependency on family members: The effectiveness of habilitation familiale relies on the availability and willingness of family members to fulfill their responsibilities, which may not always be guaranteed.
• Risk of abuse: There is a risk that family members appointed under habilitation familiale may abuse their authority or act in their own interests rather than the best interests of the incapacitated person.
• Complex family dynamics: Habilitation familiale may be challenging to implement in cases where there are complex family dynamics or conflicts of interest among family members.

Overall, habilitation familiale offers a way to involve family members in supporting an incapacitated person, but it also raises concerns about conflicts, oversight, and the potential for abuse. It’s essential to carefully consider the individual’s needs and circumstances when deciding whether habilitation familiale is the most appropriate option.