Protective supervision refers to the legal mechanisms which are set up to protect individuals who are vulnerable due to an incapacity. They are intended to ensure a person’s protection, the administration of his property, and the exercise of his civil rights.

The law provides for three different protective regimes, which vary depending on the degree of a person’s incapacity.

• Curatorship to persons of full age
  
  Curatorship is intended for individuals who have become completely and permanently unable to take care of themselves or to administer their property. It affords the highest degree of protection – the protected person retains very little autonomy.
  
  
• Tutorship to persons of full age
  
  Tutorship is set up when a person of full age is temporarily or partially unable to take care of himself or administer his property. The protected person retains a certain degree of autonomy.
  
  
• Advisers to persons of full age
  
  An adviser is appointed if a person has a very low-level or temporary incapacity. The adviser’s role is to advise and assist the protected person in the administration of his property. This regime offers the lowest degree of protection.

You should note that when a tutorship or curatorship is set up, it is possible to appoint two tutors or two curators: one to take care of the protected person and another to administer his property.

If the protected person is a minor, tutorship is the only regime that applies.

A request for protective supervision can be made by any person who shows a special interest, i.e., a person concerned for the incapacitated person's health and safety, or the proper administration of his property.

Often, such persons include spouses, close relatives, friends, volunteers who provide support to the person, neighbours, or the Public Curator. Finally, even the person himself can apply for protective supervision, if he fears that he is losing his faculties.

The institution of protective supervision is done before a notary, a judge or a clerk of the court.

In all cases, the request must be accompanied by a medical and psychosocial assessment of the person concerned. The judge, court clerk or notary must interview the person believed to be incapacitated, either in person or through a representative if his health requires it. The purpose of the interview is to find out whether the request is justified, the kind of supervision that will occur and the identity of the person in charge of representing or assisting the incapacitated person.

The judge, notary, or clerk will also summon a group consisting of parents, relatives and friends. If possible, the spouse, parents, grandparents, brothers, sisters, and children of the incapacitated person will be summoned to the meeting. Bear in mind that none of these persons is obliged to attend this gathering.

When the application is made before a judge or court clerk, it must be made by way of a motion. When the application is made before a notary, the notary must submit his report to a judge or court clerk in order for a judgment to be rendered.

If the application is contested before a court clerk or notary, the case must go before a judge.

Yes. If a person does not wish to be under protective supervision, he can contest its institution. The judge, court clerk or notary receiving the application must always give the person an opportunity to be heard. If the person insists that he does not want to be under protective supervision, the file will be transferred to the court.

You should note that the person in question may choose to be represented by a lawyer.

Temporary measures do exist. While the proceeding to implement protective supervision is underway, some provisional measures can be taken to protect the person concerned from suffering any serious prejudice concerning his person or his property:

• the court may make a decision concerning the custody of the person;
  
• a person close to the incapacitated person or the Public Curator can, in emergency situations, perform any acts necessary for the maintenance of the property of the person concerned;
  
• the court can temporarily designate the Public Curator or another person responsible for performing a specific act or administering the person’s property.

If no relative or friend is available to take on this responsibility, the Public Curator can be appointed by the court to act as the person's legal representative (tutor or curator). If so, the Public Curator will have to look after the person within the limits of his mandate.

The Public Curator also automatically becomes the legal representative of a protected person if the individual previously appointed to that role dies or resigns. The Public Curator remains in that role up until someone else is appointed as tutor or curator.

If a close relative or friend of the incapacitated person or the Public Curator believes the tutor, curator, or adviser is doing a poor job, they can either:

• ask the court to replace the tutor or curator;
  
• file a complaint with the Public Curator.

If the Public Curator is legally representing the person, a close relative or friend can file a complaint with:

• the Complaint Department of the Public Curator;
  
• the ombudsman.

The law stipulates that any judgment respecting protective supervision can be reviewed. It is therefore possible to review protective supervision of a person based on changes in the person’s state of health.

A review may be requested by the incapacitated person himself or by any interested person. The purpose of a review may be to increase, decrease, or end protective supervision.

Protective supervision usually ends when the protected person is deemed to no longer be incapable or upon his death.