UDoes an adult, whose mental faculties are only moderately impaired, but whose resources are significant, more likely than a person with modest incomes to be placed under guardianship and lose all legal capacity? This is the question posed by the following case.
In 2016, Léonie X (names changed), who became a widow, ceased all relations with her two daughters. For three years, she only sees her grandson, Arnaud, medical student, to whom she made large donations (about 800,000 euros, which enabled her to buy an apartment and a house). In 2019, Léonie reconnects with her daughters. It modifies in their favor several acts previously granted for the benefit of Arnaud (will and life insurance).
He then asks that his grandmother be placed under the guardianship of a third party, who will represent her in all acts of civil life, and who will prevent the capture of her property. To do this, he provides the certificate of a geriatrician, according to which the octogenarian has a “moderate impairment of intellectual functions, associated with depression. The old lady and her daughters oppose this measure. They ask that the youngest daughter be put in charge of a “family empowerment”. They provide other certificates, which only state a character “vulnerable and influenceable”.
On July 16, 2020, a judge nevertheless placed Léonie under guardianship; and, on December 17, 2020, the Nîmes Court of Appeal confirms its decision. She explains that if Mme X “does not present a significant degree of impairment of his intellectual and mental faculties”she is “vulnerable and easily influenced, as demonstrated by the arrangements she made in 2017 for the benefit of her grandson and in June 2019 for the benefit of her two daughters”and that’“She feels indebted for the affection given to her”.
She considers that ” (THE) behavior (of the interested party) must not (…) go against his interests. She concludes that“ a simple measure of reinforced curatorship does not appear sufficient, considering the importance of his income (approximately 5,550 euros per month) and his assets both furniture and real estate”.
On October 12 (2022, 21-12.268), the Court of Cassation, seized by Léonie and her daughters, censures this decision, for lack of “legal basis”. It refers the parties to another formation of the same Court of Appeal, so that the case can be retried in accordance with Articles 425 and 440 of the Civil Code.
Under these texts, judges must, before taking the serious decision to place a person under guardianship, ” double “ observation that his mental faculties are “altered” to the point of preventing the expression of its will, and that it must be represented “continuously” in acts of civil life. The Court of Cassation has long imposed this double observation, and it controls its consideration by the trial judges.
However, this double observation is missing here, as pointed out by Mr.e Frédéric Rocheteau, lawyer for the applicants; the Court of Appeal did not, in fact, explain how the moderate disorders of the octogenarian imposed on him, such as those of an Alzheimer patient, a representation ” keep on going “. Instead, she invoked the preservation of ” his interests “ financial and patrimonial – something she could not have done for a person without wealth. This makes M saye Rocheteau: ” It’s not (Leonie X) that the court of appeal intended to protect mays… a heritage and a succession to come. »