Court practice on special curatorship and protective measures: clarifications and answers to readers' questions

A few weeks ago, I analysed in a dedicated article the institution of the special curator, highlighting both the usefulness of this provisional protective measure and how rarely it is applied in court practice.

The article generated considerable interest and raised many practical questions, from fellow lawyers as well as from people facing the need to go through such proceedings. To bring more clarity, in this article I have summarised the most relevant points raised by readers.

1. Is a special curatorship request conditional on filing the main action (special guardianship / judicial counselling)?

Question: If I have filed an action for the appointment of a special curator to represent my father (aged 92, diagnosed with dementia) in succession proceedings, must an action for the establishment of special guardianship/judicial counselling already be pending, or can it be filed later?

Answer:

The appointment of a special curator is subsequent and provisional in nature. As follows from Art. 167 of the Civil Code, the appointment of a special curator is closely linked to the existence of main proceedings for the establishment of a protective measure.

The natural order of the legal steps requires filing the request for the establishment of the protective measure (special guardianship or judicial counselling) first; the appointment of a special curator for the duration of the proceedings may then be requested within that case or separately.

2. How does rejecting the special curatorship relate to the outcome of the main action?

Question: If the court rejects the request to appoint a special curator, does this automatically lead to the rejection of the request to establish the protective measure?

Answer:

No. Rejecting the request for a special curator does not prefigure the outcome of the main case.

Under Art. 167 of the Civil Code and Art. 938(7) of the Code of Civil Procedure, a special curator is appointed only “in case of need”, to ensure provisional representation or assistance until the case is concluded. The court may find that the person concerned is not in a state of urgency or imminent need that would justify a provisional measure.

On the other hand, granting the main action for the protection of the person relies on a complex body of evidence, governed by Art. 938(6) of the Code of Civil Procedure, which includes:

• the psychological evaluation report and the psychiatric evaluation report (showing the nature and severity of the condition);
• the psychosocial investigation report;
• any other documents or evidence relevant to establishing the need for the measure.

Moreover, Art. 941(3) of the Code of Civil Procedure provides that, if the request for protection is rejected, the provisional curatorship ends by operation of law. This shows that the two assessments are independent: a special curatorship may be granted provisionally and the main action later rejected, and vice versa.

3. Can the request be made orally, and can the court act of its own motion?

Question: If the initial application did not request the appointment of a special curator for the duration of the proceedings, can such a request be made orally at the first hearing? Can the court order the measure of its own motion?

Answer:

Yes, in both cases. The legal framework allows the court to assess whether the measure is appropriate. The wording used by the legislator (“the court may appoint”) indicates that the court may also act of its own motion if the proceedings reveal an obvious state of need of the protected person.

The reality of court practice:

Unfortunately, in practice courts are reluctant to apply this measure of their own motion. In a recent case in which I acted as court-appointed lawyer for the protected person, I asked the court to appoint a provisional special curator. The court rejected the request on the grounds that the petitioner's lawyer (editor's note: the protected person's lawyer) lacked standing to make such a request and that, not having been formally seised by a request from the claimant, it could not rule on it.

4. Procedural aspects: a separate request and proposals de lege ferenda

Question: Should the request for a special curator and the request for a guardian be made in the same action, or filed as two separate actions?

Answer:

For the proper administration of justice, the request to appoint a special curator should be registered as a separate request, precisely so that it can be decided swiftly.

Proposal de lege ferenda:

Practice reveals a major timing problem: between the registration of the main action for a protective measure and the first hearing, anywhere from a few months to more than a year may pass.

Throughout this period, the vulnerable person remains entirely without legal representation, because courts cannot rule on the appointment of a special curator before the first hearing.

It is therefore necessary to expressly require courts to decide the special curatorship request as a matter of urgency (Art. 167 Civil Code, Art. 938(7) Code of Civil Procedure), on the basis of the file and in an urgent procedure, without waiting for the first hearing on the merits.