Family Entitlement

Verified 25 November 2021 - Directorate for Legal and Administrative Information (Prime Minister)

The family entitlement allows a relative (parent, child, grandparent, brother, sister, spouse, common-law partner, Civil partnership partner) to represent or to assist one person.

This authorization is given by the judge when the person is unable to express his will on a daily basis, to do or understand everyday acts.

Entitlement allows the person representing the person to act on their behalf.

We present you with the information you need to know.

A family entitlement allows a designated person to perform certain acts on behalf of a person who is not in a position to express his or her will.

It aims to represent or assist, in principle, a vulnerable family member, whose personal and property interests (money invested, real estate, etc.) must be protected.

It can be total or partial.

The family entitlement is ordered by the judge only when necessary, where the usual representations (such as a power of attorney) are not sufficient to protect the interests of the person.

FYI  

family entitlement does not end powers of attorney issued by the person to be protected before judgment.

This is not a judicial protection measure, as is the case here safeguard of justice, the trusteeship or the guardianship.

In order to apply for family authorization, an inventory of assets and annual management accounts is not required.

Moreover, once the family authorization has been granted, there is generally no longer any review by the judge. The latter may nevertheless be forced to intervene, for example, in the event of a conflict between the authorized person and the protected person in the context of an estate in which they have common interests.

Person to protect

It is any person who is no longer able to protect his interests because of a deterioration, medically ascertained, either in his mental faculties or in his bodily faculties. It could be, for example, a person with a disability, a disease such as Alzheimer's,—

Eligible Persons

  • Parent, grandparent, great-grandparent
  • Child, grandchild, great-grandchild
  • Brother, sister
  • Spouse(s)
  • Civil partnership Partner
  • Cohabiting partner

Several persons of the same family may be entitled. Their missions are then determined by the judge.

FYI  

the authorized person shall carry out his duties as free.

Medical certificate

To apply for a family authorization, you must first obtain a detailed medical certificate to a doctor selected from a list drawn up by the public prosecutor.

This doctor may seek the opinion of the doctor treating the person to be protected.

The list of competent doctors may be obtained from the court of home of the person to be protected at the Registry of the Protection Dispute Judge (former guardianship judge).

Who shall I contact

FYI  

some courts publish the list of licensed doctors on their site.

Application to the protection litigation judge (former guardianship judge)

The request is made to the judge, directly or through the public prosecutor who has himself been requested by a doctor.

The application must contain the following documents:

  • Proof of the relationship between the applicant and the person to be protected (copy of family records, convention of Civil partnerships etc.)
  • Copy of the identity document and proof of residence of the person wishing to perform the duties of an authorized person
  • Letters from family members accepting this appointment
  • In case of willingness to sell a property, at least 2 notices of value of this property

A sample letter is available:

Model of acceptance of family members accepting the authorization or appointment of the guardian or trustee

The file must be sent to the protection litigation judge at the court of the home of the person to be protected.

Examination of the request

The judge will hear the person to be protected and consider the application (called request).

However, the judge may, in justifying his decision and on the advice of the doctor who examined the person to be protected, decide that it is not appropriate to proceed with his hearing if it would harm his health or if he is unable to express himself. For example, in case of Alzheimer's.

The judge ensures that the relatives (known to him at the time of his decision) are okay with the measure or, at least, do not object.

Decision of the judge

The judge shall decide on the choice of the authorized person(s), the scope and the duration of the authorization. It must specify whether it entrusts the authorized relative with a mission of representation (i.e. decision-making according to the wishes and interests of the person to be protected) or assistance (i.e. advice).

To do this, he checks that his choice is in accordance with the financial interests (real estate, money invested, shares,...) and personal interests of the interested party.

The judge may at any time replace a judicial protection measure (safeguard of justice, trusteeship or  guardianship) by a family empowerment measure after obtaining the opinion of the person in charge of the protection measure (authorized representative, curator, guardian).

This replacement may take place if the conditions of family entitlement (agreement of the person to be protected, adherence of relatives, legal capacity of the person to be entitled) are met.

Appeal of the decision

An appeal from the decision of authorization may be made in 15 days who follow his notification.

Family entitlement may be general or limited to certain acts.

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General Entitlement

If the interest of the person to be protected so requires, the judge may decide that the authorization be general.

The person who is entrusted with the authorization can thus carry out all the acts: administrative acts (maintenance of a property, followed by a bank account,...) and disposal of property (sale of a house, a building,...).

In such cases, the judge shall fix the duration of the authorization. However, it may not exceed 10 years.

He may renew the authorization for the same period on the basis of a detailed medical certificate.

Where the improvement of the health status of the person to be protected cannot be envisaged, the judge may renew the measure for a longer period not exceeding 20 years. In this case, the decision must be substantiated and taken on the basis of the assent of a registered doctor.

Please note

a general family entitlement shall be mentioned on the side of the birth certificate of the protected person.

Entitlement limited to one or more acts

The authorization may relate to the following acts:

  • Administrative acts (maintenance of a property, followed by a bank account,...) or instruments of disposition of property (sale of a house, a building,...). Deeds of disposition free of charge (donations) may be made only with the permission of the protection litigation judge.
  • Acts concerning the person himself (deciding on a medical operation, deciding to marry,...)

The protected person may continue to perform acts not entrusted to the authorized person.

Warning  

in principle, the authorized person cannot perform an act for which he is in opposition to the protected person's interests. However, exceptionally, the judge may authorize it because the interest of the protected person so requires. This is the case, for example, of two parents who own the same property and have different interests.

The authorization of the protection litigation judge (former guardianship judge) is required for the following acts:

  • Act of disposition free of charge (e.g. draft donation)
  • Waiver of a loss-making estate
  • Arrangements to be made (sale, rental,...) on the accommodation of the protected person
  • Conflict of interest on an act between the authorized person and the person to be protected. This may be the case in the case of an inheritance, for example, where the person entitled to the authorization also has the status of heir
  • Act seriously affecting the privacy of private life
  • Annulment or revision of an act taken by the protected person himself which is contrary to his interests                        

Only a few acts are strictly prohibited. They differ depending on who sets them.

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Acts prohibited to the authorized person 

  • Acquiring or renting personal property belonging to the protected person
  • Carrying out commercial transactions, on his behalf, from the property of the protected person
  • Renounce a life interest of the protected person or its assignment
  • Subscribe a bond who engages the protected person
  • Subscribe to an insurance policy in case of death

Acts prohibited to the protected person 

  • Write a future protection mandate for yourself or for someone else
  • Establish a power of attorney for another person in his or her bank accounts
  • Entering Alone acts of disposition or administrative

In addition to the death of the protected person, the family entitlement ends in the following situations:

  • Placement of the person concerned under the protection of justice, under the guardianship or guardianship of the court
  • Final judgment revoking the authorization (release) issued by the judge at the request of one of the relatives of the protected person or the public prosecutor. This is the case when the conditions for entitlement are no longer met or when the family entitlement is prejudicial to the interests of the protected person
  • Non-renewal of the authorization at the expiry of the fixed period
  • After completion of the acts for which the limited authorization had been taken

Who can help me?

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