Act To Amend The Law Relating To The Protection Of Property Of Persons Totally Or Partially Unable To Assume The Management Because Their Physical Or Mental State (1)

Original Language Title: Loi modifiant la législation relative à la protection des biens des personnes totalement ou partiellement incapables d'en assumer la gestion en raison de leur état physique ou mental (1)

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
Posted the: 2003-12-31 Numac: 2003009448 SERVICE PUBLIC FÉDÉRAL JUSTICE may 3, 2003. -An act to amend the law relating to the protection of property of persons totally or partially unable to assume the management because of their physical condition or mental (1) ALBERT II, King of the Belgians, to all, present and future, hi.
The Chambers have adopted and we endorse the following: chapter I:. -Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER II. -Changes of the Code civil art. (2. article 488bis, b), of the civil Code, inserted by the Act of 18 July 1991 and amended by the law of 8 November 1998, is replaced as follows: «art.» 488bis, b). § 1. At his request, to any interested person or the Attorney of the King, the protected person can be equipped with a provisional administrator by the Justice of the peace of the place of residence or, failing, the place of domicile.
Justice of the peace may take this step of office when it is seized of an application under articles 5 § 1, and 23 of the Act of 26 June 1990 on the protection of the mentally ill person or if it is sent a detailed report in accordance with articles 13, 14 and 25 of the Act. In this case, article 7, § 1, of the same law is also apply.
§
2. Everyone can do, before Justice of the peace from his residence and, subsidiarily, of his domicile or in front of a notary public, a statement stating his preference with regard to the provisional administrator to designate if he was no longer able to manage its assets. It is drawn up minutes or set out a deed of that statement. The report is countersigned by the person who made the statement. Justice of the peace can get to the residence, and where appropriate, at the home of the applicant, at the request and at the expense of the latter, in order to record a statement.
Within fifteen days after the filing of the above statement, the clerk or notary makes save the declaration in a central registry, maintained by the Royal Federation of Belgian notaries.
The King fixed the creation, maintenance and consultation of the central registry. The King determines the authorities who have free access to the central register.
Before Justice of the peace takes knowledge of the query, the clerk must check if the statement has been recorded in the register referred to in paragraph 2. In this case, he asked the notary public or justice of the peace in which the statement was made to send him a consistent excerpt from the statement.
Each may at any time, in a manner identical to that provided for in paragraphs 1 and 2, to revoke the declaration and, where appropriate, to express a new preference. It is then carried out as provided for in the preceding paragraphs. Justice of the peace or notary before whom the declaration is revoked shall inform the Justice of the peace or notary before whom the initial statement was made. This document mentions the modification on the original Act.
Justice of the peace may, on serious grounds, derogate way motivated to the declaration of intent referred to in paragraph 1.
§ 3. The father or the mother, spouse, cohabitant it legal, the person living maritally with the protected person, the person of trust or a member of the immediate family who has been appointed as provisional administrator may file a statement in which it gives its preference for the administrator to designate for the case before Justice of the peace where he or she cannot perform himself or herself its mandate. A record of this statement is established and is directly attached to the dossier referred to in article 488bis, c), § 4.
Whenever the Justice of the peace means a provisional administrator in lieu or succession of provisional administrator in function referred to in the previous paragraph, it must check if there is a statement in the folder. Justice of the peace may, for serious reasons and by a reasoned order, deviate from the notice referred to in paragraph 1.
§
4. ((As long as the interim administration, the protected person has the right to be assisted by a person of trust referred to in § 7 and articles 488bis, c), §§ 2 and 3, 488bis, d), and 488bis, f), §§ 1 and 5, it has designated or, in default, and if necessary, has been appointed by the Justice of the peace.
The trusted person is designated on the basis of a request made to this effect to the Justice of the peace by the protected person or by a third party for the benefit of, at the beginning or during the provisional administration.
When the person finds that provisional administrator missing his duties in the exercise of his mission, it must, as the interested person in accordance with article 488bis, d), apply to the Justice of the peace to review its order.
§ 5. The request for the appointment of a provisional administrator mentions, on pain of nullity: 1. the day, month, year;
2. the name, first name, profession and domicile of the applicant as well as the degree of relationship or the nature of the relationships that exist between the applicant and the person to be protected;
3. the purpose of the request and summary the reasons therefor;
4 the name, residence or domicile of the person to protect and, where appropriate, of his father or his mother, spouse, of living legal, or the person living maritally together with the person to be protected;
5. the designation of the judge who must learn.
The request is signed by the applicant or his lawyer and accompanied by a certificate of residence or, failing that, of domicile of the person to protect dating not more than 15 days.
The motion mentions in addition, wherever possible: 1. the place and date of birth of the person to be protected;
2. the nature and composition of assets to manage;
3. the name, surname and residence of the members of the family major of the nearest degree, without however going back further than the second degree.
If the application is incomplete, the Justice of the peace invites the applicant to complete it within eight days.
The request may also contain suggestions for the choice of the provisional administrator to appoint, as well as on the nature and the scope of its powers.
Articles 1034bis and following of the Judicial Code shall apply by analogy.
§
6. Under penalty of inadmissibility, is attached to the motion, except in an emergency, a detailed medical certificate, not older than 15 days, describing the State of health of the person to be protected.
The certificate specifies whether the protected person can move and, if so, if it is shown that it moves, taking into account his State. This certificate also specifies if the protected person is still able to take note of the report of the management.
This medical certificate may be established by a physician relative or ally of the protected person or the applicant or attached to a title any to the establishment in which the protected person is located.
Where, for reasons of urgency, no medical certificate is attached to the request, the Justice of the peace checks whether the urgency grounds is proven.
If so, the justice asks, within eight days from the date of receipt of the request, that the applicant provide a detailed certificate, which meets the conditions laid down in paragraphs 1 to 3.
§ 7. Justice of the peace surrounds himself with all relevant information; He may designate a medical expert who will give his opinion on the State of health of the person to be protected as well as its ability to express its will.
The person to protect and where appropriate, his father or his mother, spouse, cohabitant legal, provided that the protected person to live with them, or the person living together with the person to be protected, are convened by the clerk, by fold Court, to be heard by the Justice of the peace in the Council Chambers, where appropriate in the presence of their lawyer and the person of the person to be protected.
The legal fold are joined by a copy of the request as well as, where appropriate, an excerpt of the declaration referred to in article 488bis, b), § 2.
The legal fold mentions that the protected person has the right to appoint a lawyer and a person of trust.
The clerk informed in addition, by judicial fold, members of the family referred to in the application for the introduction thereof as well as the place and time where the person to be protected will be heard.
People convened by judicial letter, in accordance with the provisions of this chapter, become by the convening parties to the cause, unless they were opposed at the hearing. The Clerk shall notify the parties in the legal fold.
These members of the family may attend the hearing in person and ask to be heard. They can also send comments to the Justice of the peace, in writing, before the day of the hearing.
It was taken in accordance with the provisions of paragraph (2) in the case of proposed measure of office by Justice of the peace. It can also travel to the place where the person resides or where it is located. It is prepared minutes of his visit.
Justice of the peace may also hear any person it considers fit to inform.
The Registrar address the convening by judicial fold. ».
S. (3. article 488bis, c), of the Code, inserted by the Act of 18 July 1991 and amended by the law of 8 November 1998, is replaced as follows: «art.» 488bis, c). § 1. By reasoned order, Justice of the peace means a provisional administrator taking into account the nature and the composition of the goods

to manage the State of health of the person to be protected as well as his family situation.
Without prejudice to articles 488bis, b), §§ 2 and 3, the Justice of the peace chooses preferably as provisional administrator if any his father or his mother, spouse, cohabitant it legal, the person cohabiting with the person to protect, a member of the immediate family or, where applicable, the person of the person to be protected. If necessary, it takes into account in this regard the suggestions made in the query.
The provisional administrator may be chosen from among the officers or members of the staff of the establishment in which the protected person is located.
The King may the provisional administrator function exercise subject to certain conditions including limiting the number of people that a provisional administrator is to manage assets.
The designation takes place by order separated when the Justice of the peace is seized of an application under article 5, § 1, of the Act of 26 June 1990 on the protection of the mentally ill person or if it is sent a detailed report in accordance with articles 13 and 25, § 1, of the Act.
The order of the Justice of the peace shall be notified by the Clerk to the provisional administrator under judicial cover within three days of delivery. The provisional Administrator advised in writing within eight days of its designation if he accepts it. This writing is filed on the record.
Absence of acceptance provided for in the preceding paragraph, Justice of the peace means another provisional Director ex officio.
After acceptance by the provisional administrator, a copy of the order appointing him is transmitted to the Prosecutor of the King.
Within three days of receipt of the acceptance, order is notified under judicial cover by the Registrar to the applicant, the interveners, to the person to protect and, where appropriate, to the person of confidence. A unsigned copy is, where appropriate, addressed to their lawyers by simple letter.
The shipping of the order may be issued at the bottom of a copy of the query.
§ 2. A month after accepting his appointment, the provisional administrator must write a report concerning the assets and sources of income of the protected person and transmit it to the Justice of peace, the protected person and his trusted person.
Justice of the peace may also waive to transmit this report to the protected person, provided that it is not able to read.
§ 3. Each year and within thirty days after the expiry of its mandate, the provisional administrator accountable for its management persons referred to in paragraph 2 by presenting a written report containing at least the following elements: 1. the name and domicile or residence of the provisional administrator.
2. the name and domicile or residence of the protected person and, where appropriate, the person of confidence;
3. a summary of revenue and expenditures for the past period and a summary of the status of the assets managed at the beginning and at the end of this period;
4. the dates to which the provisional administrator took during the year personal contact with the protected person or person of confidence
5. the material conditions of life and the living environment of the protected person, as well as on the way in which the provisional administrator account.
In the event of death of the person protected for the duration of the interim administration, the provisional administrator filed within 30 days of death, its final report to the registry, where the heirs of the protected person and the notary responsible for the declaration and the distribution of the estate can become acquainted.
This provision shall apply without prejudice to the application of articles 1358 and following of the Judicial Code.
If it considers it necessary, the Justice of the peace may require provisional administrator of guarantees, either at the time of its designation, year of his mission.
The provisional administrator shall inform the protected person acts he does. In special circumstances, the Justice of the peace may waive this obligation. In this case, the provisional administrator shall inform the person of confidence of the protected person. Absence of a person of trust, Justice of the peace may designate the person or institution that the administrator must inform.
§ 4. The written reports pursuant to §§ 2 and 3, are kept at the registry of the justice of the peace, in a folder prepared on behalf of the protected person.
The folder also contains: 1. a copy of the original order on the appointment of a provisional administrator;
2. the name and address of the person designated by the person protegree.
3. the name and address of the other person or institution designated by the Justice of the peace pursuant to the provisions of § 3;
((4. a copy of all orders taken in application of articles 488bis, d), in 488bis, h);
5. the correspondence of the Justice of the peace for the provisional administration.
».
S. (4. article 488bis, d), of the Code, inserted by the Act of 18 July 1991, is replaced as follows: «art.» 488bis, d). By reasoned order, Justice of the peace may at any time, either ex officio or at the request of the protected person or any interested person as well as that of the Prosecutor of the King or the provisional administrator, put end to the mission, change the powers entrusted to him, or replace it.
The actions referred to in the preceding subparagraph are brought by unilateral application and signed by the applicant or his counsel. Justice of the peace may also hear any person it considers fit to inform. The provisional administrator must in all cases be heard or convened.
The mission of the temporary administrator stops right as soon as the legal representative, appointed in case of prohibition or placement of the person protected under prolonged minority, began its mission in case of appointment of a provisional administrator under article 1246 of the Judicial Code, in the event of death of the protected person.
By simple letter to the Justice of the peace and the provisional administrator, the protected person may at any time waive the assistance of the person designated by it or nominate another person of confidence. It can also perform an oral waiver, which is laid by the judge with the assistance of the Registrar and a copy of which is sent to the administrator. This notification is placed on the record.
By reasoned order, Justice of the peace may, in the interests of the protected person, decide at any time, either ex officio or at the request of the administrator or the Attorney of the King, that the person can no longer perform its function. » Art. (5 article 488bis, e), § 1, paragraph 4, of the Code, inserted by the Act of 18 July 1991, is replaced by the following subparagraph: "within the same period, the decision is notified by the care of the Clerk to the Mayor of the domicile of the person protected to be recorded in the register of the population. The mayor shall issue an extract from the population register stating the name, address and the State of a person's ability in person or all third parties showing interest. ».
S. (6. article 488bis, f), of the Code, inserted by the Act of 18 July 1991, is replaced as follows: «art.» 488bis, f). § 1. The provisional administrator is to manage assets of the protected person as a good father, or to assist the person protected in this management.
In the accomplishment of its mission, it confers personally, at regular intervals, with the protected person or the person thereof.
He may be assisted in its management by one or more persons acting under his responsibility.
It can act only with permission of the Justice of the peace when its interests are in conflict with those of the protected person.
This permission is granted by a substantiated order at the request of the provisional administrator. The procedure laid down in article 488bis, b), § 7, paragraphs 2 and 3, shall apply.
§ 2. Judge sets, taking into account the nature and composition of property to manage, as well as the State of health of the protected person, the extent of the powers of the provisional administrator.
Justice of the peace may determine the acts or categories of acts that the protected person cannot perform without the assistance of the provisional administrator.
§ 3. In the absence of any indication in the order referred to in article 488bis, (c)), the provisional Administrator represents the person protected in all legal acts and procedures, both asking what defending.
However, he cannot act without a permission of the Justice of the peace for: a) represent the protected person as plaintiff in the other procedures and acts than those provided for in articles 1150, 1180 - 1, 1187, paragraph 2, and 1206, paragraph 2, of the Judicial Code and those related to rental contracts, the occupation without title or right to social legislation in favour of the person protected as well as the constitution of civil party;
(b) dispose of movable and immovable property of the person protected;
(c) to borrow and make mortgage so that allow cancellation of a mortgage registration, with or without discharge, and the transcription of an order for seizure and sale without payment;
d) acquiesce to a request relating to rights in immovable property;

e) renounce a succession under benefit of inventory;
(f) accept a donation or collect a legacy;
(g) enter into a lease to farm or a commercial lease, as well as renew a commercial lease and enter into a lease for a period of more than nine years.
(h) compromise;
(i) to buy immovable property.
Justice of the peace is seized by simple request.
He surrounds himself with all relevant information; It may obtain the opinion of the protected person and any person it considers to be able to inform, without prejudice to articles 1186 and 1193bis of the Judicial Code, in the sale of real property.
Trade of the protected person is continued by its administrator, if the Justice of the peace considers it useful and the conditions he determines. The branch may in be entrusted to an ad hoc administrator under the supervision of the administrator. The special administrator is appointed by the commercial court at the request of the Justice of the peace.
§ 4. The housing of the protected person and chattels furniture which it is filled must remain available as long as possible.
If it becomes necessary or if it is of the interest of the protected person, especially in the event of hospitalization or long-term accommodation, have rights y related, need a permission of the Justice of the peace referred to in § 3.
This leave is granted according to the procedure laid down in article 488bis, f), § 3.
Souvenirs and other items of a personal nature are not alienated, except in the case of absolute necessity and should, by the care of the provisional administrator, be kept at the disposal of the protected person.
§ 5. Within the limits of revenues it cash, the provisional administrator adjusts the cost of maintenance and treatment in charge of the protected person and puts at the disposal thereof, following with her or with the person of trust, the amounts it deems necessary to the improvement of his fate, and without prejudice to the legal provisions and regulations relating to support for the cost of maintenance of the sick persons with disabilities and the elderly. In addition, it shall require the application of the social legislation in favour of the protected person.
§ 6. The funds and property of the protected person are fully and clearly separated from the personal wealth of the administrator. Banking assets of the protected person are recorded under his own name. ».
S. (7. article 488bis, g), of the Code, inserted by the Act of 18 July 1991, is replaced as follows: «art.» 488bis, g). The sale of movable property and buildings of the protected person takes place in accordance with the provisions of chapters IV and V of book IV of the fourth part of the Judicial Code. ».
S. (8. article 488bis, h), of the Code, inserted by the Act of 18 July 1991, is replaced as follows: «art.» 488bis, h). § 1. By reasoned decision, Justice of the peace can allocate provisional after delivery by the administrator of the report referred to in article 488bis, c), § 3, compensation the amount of which may not exceed three percent income of the person protected, together with the amount of the costs incurred, duly monitored by the Justice of the peace. It can however, upon motivated States, awarded compensation on the basis of the performed exceptional duties.
The provisional administrator may receive, apart from the remuneration referred to in paragraph 1, no compensation or benefits, of any kind or any, in connection with the exercise of the warrant of provisional administrator.
§ 2. The protected person may validly have by gifts inter vivos or dispositions de Dernières volontés only after authorization by the Justice of the peace at his request. Justice of the peace judge the ability of the will of the protected person.
Justice of the peace may deny permission to dispose by donation if the protected person or its maintenance creditors are threatened with destitution by the donation.
The provisions of sections 1026 to 1034 of the Judicial Code shall apply. In accordance with article 1026, 5 °, of the same Code, the signature of applicant is sufficient.
Justice of the peace may designate a medical expert who must give its opinion on the State of health of the person to be protected.
Justice of the peace brings together all relevant information and may convene all those that he thinks can enlighten, by judicial fold in order to hear them in the Council Chambers. In all cases, it calls provisional administrator in case of donation to the cause.
The procedure of article 488bis, b), § 6, shall apply by analogy.
§
3. Without prejudice to paragraph 2, the protected person is able to conclude a marriage contract and modify their matrimonial regime with the assistance of the provisional administrator, after authorization by the Justice of the peace on the bse of the draft prepared by the notary.
In special cases, the Justice of the peace may authorize the provisional administrator to act alone.
The provisions of article 488bis, f), § 3, paragraph 2, shall apply. ».
CHAPTER III. -Changes of Code judiciary art. 9. article 623 of the Judicial Code is replaced by the following provision: «art.» 623. for deeds that require the assistance of the Justice of the peace, it can move throughout the extent of the competence of the notary undersigned.
Justice of the peace may visit outside his canton the protected person equipped with a provisional Administrator pursuant to the provisions of book I, title XI, chapter Ierbis, of the civil Code.
».
S. 10. article 628, 3 ° of the Code is replaced by the following provision: «3 ° judge residence or, failing this, the domicile of the person to be protected, when it comes to a request referred to in article 488bis, a), of the civil Code. ". (Justice of the peace who appointed the administrator remains competent for the application further to the provisions of articles 488bis, d) to 488bis, k), unless he has, by decision motivated, determined, ex officio or at the request of the protected person or any interested person, the Prosecutor of the King or the provisional administrator, to forward the file to the Justice of the canton of the new principal residence where the protected person leaves the canton to install his main residence in a sustainable manner in another judicial canton. The last judge becomes proficient. ».
S. 11A article 1186, paragraph 1, of the same Code, replaced by the law of April 29, 2001, "to minors or prohibitions" shall be replaced by the words "to minors, prohibitions or individuals equipped with a temporary administrator under sections 488bis, has) to k), of the civil Code.
S. 12 in article 1193bis of the Code, inserted by the law of April 29, 2001, the following changes are made: 1 ° paragraph 3 is supplemented as follows: "the draft Act joined the order or the judgment of authority."
2 ° the last subparagraph is replaced by the following: "the sale must take place in accordance with the draft Act allowed by the magistrate or the Court, in the presence of Deputy-guardian where appropriate, by the Department of the notary committed by the order or the judgment of authority.
The notary annex to the deed of sale a copy of the order or judgment. The title of the purchaser is composed of the Act without any need to add and to transcribe the order or judgment for authorization.
».
S. 13A article 1194, paragraph 3, of the same Code, amended by the law of 29 April 2001, the words "by article 410, § 1,» are replaced by the words" (articles 410, § 1 and 488bis, f), §§ 3 and 4,
S.
14A section 1197 of the same Code, the words "in article 410, § 1, 1 °» are replaced by the words" (articles 410, § 1, and 488bis, f), §§ 3 and 4,
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given to Brussels, may 3, 2003.
ALBERT by the King: the Minister of Justice, M. VERWILGHEN Scellé the seal of the State: the Minister of Justice, Mr. VERWILGHEN _ Note (1) Special Session 1999.
House of representatives.
Parliamentary papers. -Proposal of law No. 50 - 0107/001 of September 23, 1999 filed by Mr Goutry, Vandeurzen and Ansoms.
-Amendments, no. 50 - 0107/002 to 50-0107/011. -Report of March 18, 2002, from Mr. Karel Van Hoorebeke, no. 50 - 0107/012. -Text adopted by the commission, no 50-0107/013. -Text adopted in plenary meeting and transmitted to the Senate, no. 50-0107/014.
Full report: meeting of March 21, 2002.
2001-2002 regular session.
Senate.
Parliamentary papers. -Project referred to by the Senate, no. 2-1087/1. Amendments Nos. 2-1087/2 to 2 - 1087/5.
Regular session 2002-2003.
Report of October 31, 2002, from Mr. M. Mahoux, no. 2 - 1087/7. -Text amended by the commission, no. 2-1087/8. -Amendments, no. 2-1087/9. Text amended by the Senate and returned to the House of representatives, no. 2 - 1087/10.
Annals of the Senate: meeting of December 12, 2002.
House of representatives.
Parliamentary papers.
– Draft amended by the Senate, no. 50-0107/015. -Amendments, Nos. 50-0107/016 and 50-0107/017.
-Report of March 4, 2003, of Mr. Servais Verherstraeten and Karel Van Hoorebeke, no. 50-0107/018. -Text adopted by the commission, no. 50-0107/19. -Text adopted in plenary meeting and sent to the Senate, no. 50-0107/020.
See also: full report: meeting of March 13, 2003.
Senate.
Parliamentary papers. -Draft amended by the House of representatives, no. 2 - 1087/11. -Amendments, no. 2-1087/12.
-Report of March 19, 2003, from Mr. Mahoux, no. 2 - 1087/13. -Text amended by the commission, no. 2-1087/14.
-Text réamendé by the Senate and returned to the House of representatives, no. 2 - 1087/15.
Annals

of the Senate: meetings of 26 and 27 March 2003.
House of representatives.
Parliamentary papers.
-Project réamendé by the Senate, no. 50-0107/021. -Amendments, no. 50-0107/022. -Report of April 1, 2003 from Mr. Tony Van Parys, no. 50 - 0107/023. -Text adopted by the commission, no. 50-0107/024. -Text adopted in plenary and subject to Royal assent, meeting No. 50-0107/025.
Full report: meeting of April 1, 2003.