When someone can no longer take care of himself or manage his property, a court can declare him incapable. If there is no one in his circle of friends and family who can act for him, the Curateur public (public curator) can act on his behalf.
A Last Resort
The Court can appoint the public curator as a tutor or temporary representative. The public curator steps in as a last resort. When acting as a tutor, the Public Curator must try to find someone close to the incapacitated person to take on the role of tutor.
If the person acting as the tutor of the incapacitated adult dies or resigns, a replacement must be found amount the circle of friends and family of the incapacitated adult. The public curator steps in only in an emergency.
The Public Curator’s Role and Responsibilities
The public curator can be named to look after the well-being of a person, to manage his, or to do both.
The public curator’s role and responsibilities are determined by a judge, and will depend on the incapacitated person’s level of autonomy and general life circumstances.
Protecting a Person’s Well-being
The public curator must protect the incapacitated person and make sure the person’s needs are met.
But the public curator is not necessarily the person’s guardian. A guardian is someone who watches over a person and makes sure the person’s living arrangements and needs are properly taken care of. A judge will make the public curator guardian only if there is no one else who can do this.
Also, even when the public curator is the guardian, it is not the public curator who acts as guardian on a day-to-day basis. The public curator will name someone else to do this. The day-to-day guardian can, if necessary, make decisions about health care required by the incapacitated person.
Even if someone else acts as guardian day-to-day, the public curator can keep some powers to ensure the well-being of the incapacitated person. For example, the public curator can keep the power to decide where the incapacitated person will live or whether visits and outings should be controlled, or to consent to health care.
The guardian named by the public curator has a duty to respect the values and wishes of the incapacitated person. As much as possible, the guardian must try to get to know the incapacitated person, especially by visiting him to find out how he is doing.
When acting as a tutor, the public curator is responsible for seeing that the incapacitated person’s property is well managed, in keeping with the rules on “simple administration”.
For example, the public curator must
- make a list of the incapacitated person’s property,
- collect any allowances and compensation owed to the incapacitated person,
- pay for housing and expenses,
- protect and maintain any buildings owned by the incapacitated person,
- manage the person’s money and investments,
- prepare tax returns, and
- manage contracts that were signed before the public curator was named to act for the incapacitated person.
The public curator needs permission of a close relative or the court to borrow large sums of money or sell or hypothec (mortgage) a building on behalf of the incapacitated person.
Replacing the Public Curator
Anyone close to the incapacitated person can ask the court to replace the public curator with someone else. It is not necessary to show that the public curator is doing a bad job to ask for a replacement.