An adviser for an adult is responsible for protecting someone who is generally able to look after their own affairs but who needs some help or advice with specific acts or transactions, such as selling or mortgaging a property. The legal name for an adviser for an adult is an “adviser to a person of full age.”
As of November 1, 2022, a person can no longer become an adviser for an adult. However, adults who were already receiving assistance from an adviser before this date will continue to receive this assistance if the arrangement was never cancelled by a court. Existing advisers continue to have the same responsibilities as they did before this date.
What is an “adviser for an adult”?
An adviser for an adult helps protect a person in need, such as an adult who requires assistance and advice in exercising their rights or managing their finances. This adult is said to be “assisted” because they need another person to help them perform certain acts.
The person receiving assistance is generally still able to care for themself. For example, they can continue to exercise their own rights or consent to — or refuse — health care. However, they can rely on the assistance of their adviser when it comes to certain contracts or other acts involving the administration of their property or finances, such as buying a car or signing a lease.
It’s important to note that the adviser provides assistance but does not represent the person, who still has the capacity to manage their own affairs within the meaning of the law. For example, the adviser does not sign contracts (such as a lease) on behalf of the person.
What is the adviser’s role?
The adviser’s role is limited to assisting the person in very specific situations. The person continues to administer their own property while benefiting from the adviser’s assistance.
The judgment naming a person as an adviser explains the various procedures, transactions and decisions that the person handle on their own, and those they must do with the adviser’s assistance.
In legal terms, the assisted person has a level of autonomy similar to the autonomy of a minor, unless the judgment states something to the contrary.
An adviser to an adult must also make sure the protected person’s incapacity is reassessed every three years. However, the court can provide for a shorter period in the judgment appointing the person as the adviser for an adult.
Is the protected person required to do what the adviser says?
No. A person who receives the assistance of an adviser remains the sole administrator of all their property and can do whatever they want with it. Therefore, if they don’t follow the adviser’s advice, and end up making a wrong decision, the adviser isn’t to blame.
In other words, an adviser to an adult can’t force the person to follow their advice because the advisor isn’t responsible for administering the person’s property. However, the adviser’s signature is required for certain important acts mentioned in the judgment naming them as adviser. Without the adviser’s signature, the assisted person isn’t authorized to carry out these specific acts.
The adviser’s role is essentially based on trust. The adviser can ask the court to be dismissed if they have lost the trust of the assisted person such that the person regularly refuses their advice. Any other interested person can also ask the court or a notary to end the role of the adviser.
In which situations does a protected person need the assistance of an adviser to an adult?
The judgment naming the adviser states which contracts, legal procedures or transactions require the adviser’s assistance and which do not.
If the judgment doesn’t mention anything about the following, the adviser’s assistance will be required to:
- renounce to an inheritance
- accept a gift that comes along with a condition or duty to do something
- borrow a large sum of money, taking into account the person’s financial situation
- sell or hypothec (mortgage) a property.
In these cases, the person requires the assistance and agreement of their adviser. If the adviser agrees with the decision, the person and the advisor must both sign the necessary documents.
What happens if an adult carries out acts that required assistance?
Acts carried out alone by an adult who should have been assisted by their adviser can be cancelled, or the resulting obligations can be reduced, but only if they cause harm to the adult.
For example, George, an assisted adult, renounces to an inheritance from his late mother, Estelle, without consulting his adviser, Jerry. This results in George being unable to pay his debts. Since renouncing to an inheritance is an act that requires assistance, and since it is causing George harm (preventing him from paying his debts), Jerry can ask that the refusal of the inheritance be cancelled.
What happens if the adviser to an adult doesn’t do their job properly, or not at all?
If an adviser doesn’t do their job properly, the assisted person, can involve the Public Curator or ask the court to dismiss the adviser. The assisted person, a family member or any other interested person can apply to the court to have the adviser dismissed.
The Public Curator does not have the responsibility to supervise an adviser to an adult but can investigate irregularities or abuses and require them to correct the situation.
No one actually has a legal responsibility to supervise the actions of an adviser to an adult because this form of protection provides a lot of autonomy to the assisted person. The adviser doesn’t administer their property or represent them.
What happens if the adviser no longer wants to or can’t take on this role?
If the adviser dies, is no longer able to carry out this role (for example, due to an illness or accident) or resigns, the assisted person can contact the Public Curator to evaluate the possibility of putting an assistance measure in place. If the person needs a greater level of protection, the court can set up a tutorship.