Habilitation familiale: How to protect a vulnerable person?

What is family habilitation?

Family habilitation is a legal measure that enables a vulnerable relative to be represented, without having to resort to the traditional measures of guardianship and curatorship. In this way, families can look after the interests of their vulnerable loved ones when they are unable to express their wishes for various reasons (illness, disability, age, etc.). The deterioration in faculties must, of course, be medically attested and be "of such a nature as to prevent the expression of his/her will". The judge can only order family habilitation in cases of necessity, and when conventional means of representation(such as power of attorney) are no longer able to adequately safeguard the person's interests. This procedure means that, once the judge has pronounced family habilitation, the guardianship judge is not systematically called in, unless there is a particular problem.

Who can be empowered?

Given the "lighter" control exercised by the judge once the measure has been pronounced, it is imperative that there be a climate of total trust towards the person empowered. Good family relations are the key to the success of habilitation. Only children, grandchildren, parents, grandparents, brothers, sisters, PACS partners or cohabitants are eligible.
The spouse, on the other hand, already benefits from this protection under article 219 of the Civil Code: "If one of the spouses is unable to express his or her will, the other may be empowered by the court to represent him or her, either generally or for certain specific acts.rally, or for certain specific acts, in the exercise of powers resulting from the matrimonial property regime, the conditions and scope of this representation being set by the judge. In the absence of legal authority, mandate or judicial empowerment, acts performed by one spouse in representation of the other have effect, with respect to the latter, according to the rules of business management."

What form does this empowerment take?

The powers of the designated person will depend on the content of the authorization. It may be :
- limited to one or more specific acts concerning property or the person him/herself: choice of place of residence, payment of rent, day-to-day management of a bank account, etc.
- general, when the empowered person can perform acts of administration (such as signing a residential lease or opening a deposit account) and disposal of property. These are acts that commit a person's assets, for the present or the future, such as selling a property, taking out a loan, etc. General family empowerment is recorded in the margin of the birth certificate, by means of an entry in the civil register.

Stéphanie Swiklinski