An incapacitated person sometimes needs representation for just one specific situation, such as signing a contract or selling a house.
In this case, it might not be necessary to establish a tutorship. “Temporary Representation” may be sufficient. This type of representation promotes the autonomy of an incapacitated person. It allows the representative to act on their behalf for a specific act and amount of time.
Carrying out a specific act during a set amount of time
The court can appoint a temporary representative to help the incapacitated person with a one-time need. The temporary representative acts on behalf of the incapacitated person by carrying out a specific legal act during a set amount of time.
For example, a temporary representative could:
- Represent the incapacitated person at a trial.
- Sign a lease.
- Sell a house.
- Borrow money.
- Hypothecate (mortgage) property.
- Refuse a succession (inheritance).
The court will only grant permission for some acts, such as selling a house or borrowing money, if specific conditions are met. For example, the condition may be that the act is necessary for paying the incapacitated person’s debts.
Avoids creating a tutorship
The court can decide that an incapacitated person doesn’t need the daily representation that a tutorship would provide. For example, this might be the case if family members can care for the person or if managing their finances isn’t complicated. Instead, the court can decide that the incapacitated person only requires representation for a one-time situation to carry out a specific legal act.
Temporary representation, therefore, avoids creating a tutorship when that’s not necessary. It also promotes the autonomy of the incapacitated person. In other words, aside from the specific act for which the person is being represented, they continue to make their own decisions.
A specific act
Once the court has appointed the representative, they can act on behalf of the incapacitated person for the specific act that has been authorized.
The representative’s name is then entered in the Public Curator’s register.
Respect the court’s conditions
When the temporary representative is carrying out their duties, they must respect the conditions set by the court. These conditions may include a time limit in which the representative is required to complete their duties. For example, the court can specify a time limit of three months to sign a lease.
The court can also order the temporary representative to provide an account of their actions to any of the following people:
- the spouse of the person being represented
- a close relative
- a person having a close connection with the person being represented
- the Public Curator
Consider the wishes and preferences of the incapacitated person
The temporary representative must act in the best interests of the incapacitated person, respect their rights, safeguard their autonomy, and take into account their wishes and preferences.
As much as possible, the incapacitated person must participate in decisions that concern them and be informed of what the temporary representative is doing.
Appointment of a temporary representative
The request for temporary representation is made in court.
The court must consider several factors when deciding whether to appoint a representative, including the medical and psychosocial assessments concerning the person. The court must also allow the person to provide their point of view.
Who can make the request?
The request for temporary representation can be made by
- the incapacitated person,
- their spouse,
- close relatives,
- a mandatary appointed in a protection mandate, if the person has one,
- a person having a close connection with the incapacitated person, or
- the Public Curator.
Notaries and lawyers can also assist with requests for temporary representation in court.
To learn more about making a request for temporary representation, visit the website of the Public Curator.
Who can be a representative?
The person who makes the request for temporary representation isn’t automatically named as the representative.
The court will decide who the temporary representative will be. This decision is made in the best interests of the incapacitated person taking into account their wishes and preferences.
The court can name
- the spouse of the incapacitated person,
- a close relative,
- a mandatary appointed in a protection mandate, if the person has one,
- a person having a close connection with the incapacitated person, or
- the Public Curator.
End of the temporary representation
The representative must inform the incapacitated person and the Public Curator in writing that the act has been completed.
Temporary representation will come to an end when the act has been completed. Temporary representation also ends if a tutorship is established for the incapacitated person or if they have protection mandate and it is homologated.