Since 2016, family habilitation has completed the list of protective measures for vulnerable people. This is a more flexible solution for representing a loved one who is no longer able to express his or her wishes, or whose capacity has been impaired.
An alternative to guardianship
Family habilitation is intended for people who are unable to look after their own interests because of a medically diagnosed impairment of either their mental or physical faculties, such as to prevent them from expressing their wishes". This measure enables the person to be represented by a person who can take action on his or her behalf. More flexible than curatorship or guardianship, family habilitation requires less formalism.
To initiate the procedure, a relative must apply to the guardianship judge to represent the vulnerable person. The request must be accompanied by a detailed medical certificate, drawn up by a doctor on a list drawn up by the public prosecutor. This doctor may request the opinion of the attending physician. After interviewing the person to be protected, and before granting family habilitation, the guardianship judge must ensure that the person is in agreement. If this is not the case, the judge will validate the absence of legitimate opposition from the family circle, both to the principle of implementing family habilitation and to the choice of the person empowered to carry out this mission.
The judge also verifies that habilitation is consistent with the property and personal interests of the person to be protected. The judge has the final say:
- he can decide to grant family habilitation even though he has been seized of an application to open another legal protection measure;
- conversely, he may order another measure if he considers that family habilitation does not provide sufficient protection.
Who can initiate the procedure?
Family habilitation can be set up at the request of the person to be protected him/herself, or a member of his/her immediate family (mother, father, grandparents, child, grandchild, brother, sister, PACS partner, etc.).ur, PACS partner, cohabitee, spouse of the person to be protected, unless community of life has ceased between them) or by the Public Prosecutor at the request of one of these persons.
General or special?
Family habilitation can take two forms. It can be :
- special, i.e. limited to one or more acts determined by the judgment concerning property or the person him/herself (choice of place of residence, payment of rent, day-to-day management of bank account, etc.) ;
- or general, if the empowered person can perform administrative acts (such as signing a residential lease or opening a deposit account). This also applies to acts that commit a person's assets for the present or the future, such as selling a property, taking out a loan, making a donation...). General family habilitation is mentioned in the margin of the birth certificate.
Since the 2018-2022 programming and justice reform law of March 23, 2019, family habilitation is no longer limited to representing the protected person, i.e. performing acts on their behalf. It has been extended to include acts of assistance. This means that the guardianship judge can empower a family member to assist the protected person in carrying out acts, just as a curator would. In contrast to the legal protection, guardianship or curatorship regimes, once the person has been designated to receive family habilitation, the judge no longer intervenes.