3 MAI 2003. - An Act to amend the law relating to the protection of property of persons totally or partially unable to assume its management because of their physical or mental state (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Amendments to the Civil Code
Art. 2. Section 488bis, (b), of the Civil Code, inserted by the Act of 18 July 1991 and amended by the Act of 8 November 1998, is replaced as follows:
"Art. 488bis, b). § 1^er. At its request, to that of any interested person or Crown counsel, the person to be protected may be provided with a provisional administrator by the justice of the peace from the place of his residence or, if not, from the place of his domicile.
The justice of the peace may take such action on his or her own behalf when he or she is seized of the request under Articles 5, § 1^erand 23 of the Act of 26 June 1990 on the protection of the person of the mentally ill, or if a report is submitted to him in accordance with articles 13, 14 and 25 of the Act. In this case, Article 7, § 1^er, the same law is also applicable.
§ 2. Everyone may make, before the justice of the peace of his or her residence and, alternatively, his or her domicile or before a notary, a statement in which he or she indicates his or her preference with respect to the provisional administrator to designate whether he or she was no longer in a position to manage his or her property. A report is issued or an authentic act of the declaration is established. The minutes are countersigned by the person who made the statement. The justice of the peace may go to the residence, and if so, to the applicant's home, at the request and at the expense of the applicant, in order to register a statement.
Within fifteen days of the filing of the above-mentioned declaration, the clerk or notary shall record the said declaration in a central register, held by the Royal Federation of Belgian Notariat.
The King sets out the modalities for the creation, holding and consultation of the central registry. The King determines the authorities that have free access to the central registry.
Before the justice of the peace becomes aware of the request, the clerk must verify whether the statement was recorded in the register referred to in paragraph 2. In that case, he asked the notary or the justice of the peace to whom the declaration was made to send him an extract in accordance with the declaration.
Each may at any time, in a manner identical to that provided for in paragraphs 1^er and 2, revoke the statement and express, where appropriate, a new preference. It is then proceeded as provided for in previous paragraphs. The justice of the peace or the notary before whom the statement is revoked shall inform the justice of the peace or the notary before whom the initial statement has been made. The latter mentions the amendment to the original act.
The justice of the peace may, on serious grounds, derogate in a reasoned manner from the declaration of will referred to in paragraph 1^er.
§ 3. The father and/or mother, the spouse, the legal cohabitant, the person living in marriage with the protected person, the trusted person or a member of the close family who has been designated as a provisional administrator may file a statement before the justice of the peace in which he or she gives his or her preference to the provisional administrator to be appointed in case he or she is unable to exercise his or her mandate. A record of this declaration is prepared and is directly attached to the file referred to in Article 488bis, c), § 4.
Whenever the justice of the peace designates a provisional administrator in replacement or succession of the provisional administrator in office referred to in the preceding paragraph, he or she shall verify whether there is a statement in the file. The justice of the peace may, on serious grounds and by a reasoned order, depart from the declaration referred to in paragraph 1^er.
§ 4. As long as the provisional administration lasts, the person to be protected 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^er and 5, whether or not it has designated or has been designated by the justice of the peace if necessary.
The trusted person shall be designated on the basis of an application made to that effect to the justice of the peace by the person to be protected or by a third party in the interest of the court, at the beginning or during the interim administration.
When the trustee finds that the provisional administrator fails to perform his duties in the performance of his or her mission, he or she must, as an interested person in accordance with section 488bis, (d), request the justice of the peace to review his or her order.
§ 5. The request for the designation of a provisional administrator mentions, barely invalid:
1. day, month, year;
2. the applicant's name, first name, occupation and domicile, and the degree of parentage or the nature of the relationship between the applicant and the person to be protected;
3. the subject matter of the application and the summary indication of the reasons;
4. the name, first name, residence or domicile of the person to be protected and, where applicable, his or her father and/or mother, spouse, legal cohabitant, or the person who is married to the person to be protected;
5. the appointment of the judge who must know of it.
The request is signed by the applicant or his lawyer and accompanied by a certificate of residence or, if not, a person's domicile to be protected does not dating more than fifteen days.
The request also mentions, to the extent possible:
1. the place and date of birth of the person to be protected;
2. the nature and composition of the assets to be managed;
3. the name, first name, and domicile of the family members of the closest degree of kinship, but not further than the second degree.
If the request is incomplete, the justice of the peace invites the complainant to complete it within eight days.
The request may also include suggestions regarding the choice of the provisional administrator to designate, as well as the nature and extent of his or her powers.
Sections 1034bis et seq. of the Judicial Code apply by analogy.
§ 6. In the event of an emergency, a circumstantial medical certificate does not dating more than fifteen days, describing the health of the person to be protected, is attached to the request.
The certificate specifies whether the person to be protected may move and, if so, if indicated that he or she is moving, taking into account his or her condition. This certificate also specifies whether the person to be protected is still in a position to read the management record.
This medical certificate may not be established by a parent or allied physician of the person to be protected or the applicant, or attached to any title to the establishment in which the person to be protected is located.
When, for emergency reasons, no medical certificates are attached to the request, the justice of the peace shall verify whether the alleged emergency reason is proven.
If so, the justice of the peace shall, within eight days from the date of receipt of the request, request that the applicant provide a circumstantial certificate, which shall meet the conditions set out in paragraphs 1^er 3.
§ 7. The justice of the peace surrounds all relevant information; he may designate a medical expert who will give his opinion on the health of the person to be protected and on his ability to express his or her will alone.
The person to be protected and, where applicable, his father and/or mother, the spouse, the legal cohabitant, provided that the person to be protected alive with them, or the person who is married to the person to be protected, are summoned by the clerk, by judicial fold, to be heard by the justice of the peace in the board's chamber, if any in the presence of their lawyer and the person to be protected.
A copy of the request is attached to the judicial fold and, where applicable, an extract from the declaration referred to in Article 488bis, (b), § 2.
The judicial fold mentions that the protected person has the right to appoint a lawyer and a trusted person.
The Clerk further informs, by judicial fold, the members of the family mentioned in the request for the introduction of the family and the place and time when the person to be protected will be heard.
Persons summoned by judicial fold, in accordance with the provisions of this chapter, shall become by such summons parties to the case unless they oppose the hearing. The clerk shall notify the parties in the judicial fold.
These family members may appear in person at the hearing and ask to be heard. They may also communicate their comments to the justice of the peace in writing before the day of the hearing.
It shall be carried out in accordance with the provisions of paragraph 2 in the event of an ex officio measure by the justice of the peace. The person may also visit the place where the person resides or where the person is located. He's made a record of his visit.
The justice of the peace may also hear any person whom he considers fit to inform. The clerk addresses the summons by judicial fold. "
Art. 3. Section 488bis, (c), of the same Code, inserted by the Act of 18 July 1991 and amended by the Act of 8 November 1998, is replaced as follows:
Art. 488bis, c. § 1^er. By a reasoned order, the justice of the peace designates a provisional administrator, taking into account the nature and composition of the property to be managed, the state of health of the person to be protected and his or her family situation.
Without prejudice to sections 488bis, (b), §§ 2 and 3, the justice of the peace preferably chooses as a provisional administrator, if any, his father and/or mother, the spouse, the legal cohabitant, the person living in marriage with the person to be protected, a member of the close family or, if applicable, the person who is confident of the person to be protected. In this regard, the Committee takes into account the suggestions made in the request.
The provisional administrator may not be selected from the executives or staff of the establishment in which the person to be protected is located.
The King may subordinate the exercise of the function of a provisional administrator under certain conditions, including by limiting the number of persons whose mission is to manage the property.
The designation shall take place by separate order when the justice of the peace is seized of the request under Article 5, § 1^erof the Act of 26 June 1990 on the protection of the person of the mentally ill or if a report is submitted to him in accordance with articles 13 and 25, § 1^erSame law.
The order of the justice of the peace is notified by the clerk to the provisional administrator under judicial fold within three days of the pronouncement. The provisional administrator shall notify in writing within eight days of the designation if he accepts the designation. This letter is filed on file.
In the absence of acceptance under the preceding paragraph, the justice of the peace shall designate another provisional administrator on his or her own motion.
After acceptance by the provisional administrator, a copy of the order appointing him is forwarded to the Crown Prosecutor.
Within three days of receipt of acceptance, the order shall be notified by the Registrar to the applicant, the interveners, the person to be protected and, where appropriate, the trustee. An unsigned copy is, if any, addressed to their lawyers by simple letter.
The shipment of the order may be delivered at the bottom of a copy of the request.
§ 2. A month or more after accepting the designation, the provisional administrator must prepare a report on the heritage situation and sources of income of the protected person and forward it to the justice of the peace, the protected person and the trusted person. The justice of the peace may also dispense with this report to the protected person, provided that it is not in a position to be aware of it.
§ 3. Each year and within 30 days of the expiration of the term, the provisional administrator shall report on the management of the person referred to in § 2 by submitting a written report including at least the following:
1. the name, first name and domicile or residence of the provisional administrator;
2. the name, first name and domicile or residence of the protected person and, if any, of the trusted person;
3. a summary of income and expenditure for the past period and a summary of the state of the heritage managed at the beginning and end of that period;
4. the dates on which the provisional administrator had personal contact with the protected person or the trusted person during the year;
5. the material living conditions and living conditions of the protected person and the manner in which the provisional administrator has taken it into account.
In the event of the death of the protected person during the period of the provisional administration, the provisional administrator shall file within thirty days of the death, his final report to the Registry, where the heirs of the protected person and the notary responsible for the declaration and division of the estate may be aware of it. This provision applies without prejudice to the application of sections 1358 et seq. of the Judicial Code.
If he considers it necessary, the justice of the peace may require the provisional administrator of the guarantees, either at the time of his appointment or during the course of his mission.
The provisional administrator shall inform the person protected of the acts he or she performs. In special circumstances, the justice of the peace may exempt him from this obligation. In this case, the provisional administrator informs the trusted person of the protected person. In the absence of a trustee, the justice of the peace may designate the person or institution that the administrator must inform.
§ 4. The written reports prepared pursuant to §§ 2 and 3 shall be kept in the registry of the justice of the peace, in a file established in the name of the protected person.
The file also contains:
1. a copy of the original order appointing a provisional administrator;
2. the name and address of the trusted person designated by the protein person.
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 made under sections 488bis, d), 488bis, h);
5. correspondence from the justice of the peace concerning the provisional administration. "
Art. 4. Section 488bis, (d), of the same Code, inserted by the Act of 18 July 1991, is replaced as follows:
"Art. 488bis, d). By a reasoned order, the justice of the peace may, at any time, either on his or her own motion or at the request of the protected person or any interested person, as well as of the Crown Prosecutor or the provisional administrator, terminate his or her mission, alter the powers entrusted to him or replace him.
The actions referred to in the preceding paragraph are filed by a unilateral request signed by the appellant or his counsel. The justice of the peace may also hear any person whom he considers fit to inform. The provisional administrator must in all cases be heard or summoned.
The mission of the provisional administrator shall cease as soon as the legal representative, appointed in the event of a prohibition or placement of the protected person under protracted minority status, commences his or her mission, in the event of the appointment of a provisional administrator under section 1246 of the Judicial Code and in the event of the death of the protected person.
By simple letter addressed to the justice of the peace and the provisional administrator, the protected person may give up at any time the assistance of the trusted person designated by the person or designate another trusted person. It may also make an oral renunciation, of which the judge draws up with the assistance of the clerk and whose copy is sent to the provisional administrator. This notification is filed.
By reasoned order, the justice of the peace may, in the interests of the person to be protected, decide at any time either on his or her own motion or at the request of the interim administrator or the Crown Prosecutor, that the person of trust shall no longer exercise his or her office. »
Art. 5. Article 488bis, e), § 1^er, paragraph 4, of the same Code, inserted by the Act of 18 July 1991, is replaced by the following paragraph:
"In the same period, the decision is notified by the clerk's care at the burial of the protected person's home in order to be recorded in the register of the population. The burmestre delivers an excerpt from the register of the population indicating the name, address and state of capacity of a person to the person himself or to any third party justifying interest. "
Art. 6. Section 488bis, (f), of the same Code, inserted by the Act of 18 July 1991, is replaced as follows:
“Art. 488bis, (f) . § 1^er. The purpose of the provisional administrator is to manage, in good family father, the property of the protected person or to assist the protected person in this management.
In carrying out his mission, he personally engages, at regular intervals, with the protected person or the trusted person.
He may be assisted in his management by one or more persons acting under his or her responsibility.
It can only act through a special authorization of the justice of the peace when its interests are in opposition to those of the protected person.
This authorization is granted by a reasoned order upon request of the provisional administrator. The procedure provided for in Article 488bis, (b), § 7, paragraphs 2 and 3, is applicable.
§ 2. The judge determines, taking into account the nature and composition of the property to be managed and the health status of the protected person, the extent of the powers of the provisional administrator.
The 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 an indication in the order referred to in section 488bis, (c), the provisional administrator represents the person protected in all legal acts and procedures, both by requesting and defending.
However, it can only act through a special authorization of the justice of the peace to:
(a) represent the person protected in court as a plaintiff in other proceedings and acts as provided for in articles 1150, 1180-1°, 1187, paragraph 2, and 1206, paragraph 2, of the Judicial Code and those relating to rental contracts, occupation without title or right, social legislation for the protected person and the constitution of a civil party;
(b) alienate the movable and immovable property of the protected person;
(c) borrow and grant mortgages as well as allow the cancellation of a mortgage registration, with or without a quittance, and the transcript of a non-payment seizure order;
(d) acquire a real estate claim;
(e) abandon a succession under inventory benefit;
(f) accept a donation or collect a legacy;
(g) enter into a lease or commercial lease, and renew a commercial lease and enter into a lease for more than nine years;
(h) transfer;
(i) buy a building property.
The justice of the peace is seized by a simple request. It surrounds all useful information; It may, in particular, collect the notice of the protected person and of any person whom it considers fit to inform, without prejudice to articles 1186 and 1193bis of the Judicial Code, of the sale of buildings.
The trade of the protected person is continued by its provisional administrator, if the justice of the peace considers it useful and under the conditions it determines. Management may be entrusted to a special administrator under the supervision of the provisional administrator. The special administrator is appointed by the commercial court at the request of the justice of the peace.
§ 4. The shelter of the protected person and the furnishings of which it is furnished must remain at its disposal as long as possible.
If it becomes necessary or if it is in the interest of the protected person, especially in the case of long-term hospitalization or accommodation, to have the related rights, it will be necessary to authorize the justice of the peace referred to in § 3.
This authorization is granted according to the procedure provided for in Article 488bis, (f), § 3.
Memories and other objects of personal character are not alienated, except in the event of absolute necessity and shall, by the care of the provisional administrator, be kept at the disposal of the protected person.
§ 5. Within the limits of his or her income, the provisional administrator shall determine the maintenance and care expenses of the protected person and make available to the protected person, after conferring them with him or her or the trusted person, the amounts that he or she considers necessary for the improvement of his or her fate, without prejudice to the legal and regulatory provisions relating to the care of the sick, disabled and the elderly. In addition, it is required to require the application of social legislation in favour of the protected person.
§ 6. The funds and assets of the protected person are completely and clearly separated from the administrator's personal heritage. The bank assets of the protected person are registered in their own name. "
Art. 7. Section 488bis, (g), of the same Code, inserted by the Act of 18 July 1991, is replaced as follows:
"Art. 488bis, g) . The sale of movable and immovable property of the protected person shall take place in accordance with the provisions of chapters IV and V of Book IV of Part IV of the Judicial Code. "
Art. 8. Section 488bis, (h), of the same Code, inserted by the Act of 18 July 1991, is replaced as follows:
“Art. 488bis, h) . § 1^er. By reason of a decision, the justice of the peace may allocate to the provisional administrator, after the latter receives the report referred to in section 488bis, c), § 3, a remuneration whose amount cannot exceed three per cent of the income of the protected person, plus the amount of the expenses incurred, duly controlled by the justice of the peace. However, he may, upon presentation of motivated states, allocate compensation according to the exceptional duties performed.
The provisional administrator may not receive, apart from the remuneration referred to in paragraph 1^er, no remuneration or any benefit, of any kind or of any kind, in relation to the exercise of the judicial mandate of a provisional administrator.
§ 2. The protected person can only be disposed of by means of donations between live or by the provisions of the last will after authorization by the justice of the peace at his request. The justice of the peace judges the suitability of the will of the protected person.
The justice of the peace may refuse permission to dispose by donations if the protected person or his creditors are threatened with indigence by the donation.
The provisions of articles 1026 to 1034 of the Judicial Code are applicable. In accordance with Article 1026, 5°, of the same Code, the applicant's signature is sufficient.
The justice of the peace may appoint a medical expert to render his opinion on the health of the person to be protected.
The justice of the peace gathers all the useful information and can summon all those he thinks he can enlighten him, by judicial fold in order to hear them in the council chamber. In any case, he calls the provisional administrator to the cause in case of donation.
The procedure of Article 488bis, (b), § 6, is applicable by analogy.
§ 3. Without prejudice to § 2, the protected person is capable of entering into a marriage contract and amending his matrimonial regime with the assistance of the provisional administrator, after authorization of the justice of the peace on the bse of the project established by the notary.
In particular 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. - Amendments to the Judicial Code
Art. 9. Section 623 of the Judicial Code is replaced by the following provision:
“Art. 623. For the notarial acts that require the assistance of the justice of the peace, the judge may move throughout the scope of the notary's authority.
The justice of the peace may visit outside his canton to the protected person provided with a provisional administrator in accordance with the provisions of Book I^erTitle XI, chapter I^erbis, Civil Code. "
Art. 10. Section 628, 3°, of the same Code is replaced by the following provision:
« 3° The judge of the residence or, failing that, of the person's domicile to be protected, in the case of an application under section 488bis, (a), of the Civil Code. The justice of the peace having designated the administrator shall be competent for the subsequent application of the provisions of articles 488bis, (d) to 488bis, (k), unless, by reasoned decision, it has decided, ex officio or at the request of the protected person or of any interested person, the procurator of the King or the provisional administrator, to transmit the file to the justice of the canton of the new principal residence, when the protected person leaves the canton for the purpose The latter judge becomes competent. "
Art. 11. Article 1186, paragraph 1^er, of the same Code, replaced by the Act of 29 April 2001, the words "to minors or to prohibited persons" are replaced by the words "to minors, to prohibited persons or to persons provided with a provisional administrator under sections 488bis, (a) to (k), of the Civil Code".
Art. 12. In section 1193bis of the same Code, inserted by the Act of 29 April 2001, the following amendments are made:
1st paragraph 3 is supplemented as follows: "The draft act is attached to the order or the judgment of authorization";
2° the last paragraph is replaced as follows: "The sale must take place in accordance with the draft act admitted by the justice of the peace or the court, in the presence of the subrogator, by the ministry of the notary committed by the order or judgment of authorization.
The notary annexed to the act of sale a true copy of the order or judgment. The title of the purchaser consists of the act without the need to add it and to transcribe the order or judgment of authorization. "
Art. 13. In article 1194, paragraph 3, of the same Code, amended by the law of 29 April 2001, the words "by article 410, § 1^er," are replaced by the words "by articles 410, § 1^er, and 488bis, (f), §§ 3 and 4,”.
Art. 14. In Article 1197 of the same Code, the words "in Article 410, § 1^er, 1°" are replaced by the words "in Articles 410, § 1^er, and 488bis, (f), §§ 3 and 4,”.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 3 May 2003.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Special session 1999.
House of Representatives.
Parliamentary documents. - Bill No. 50-0107/001 of 23 September 1999 filed by Mr. Goutry, Mr. Vandeurzen and Mr. Ansoms. - Amendments, no. 50-0107/002 to 50-0107/011. - Report of March 18, 2002 by Mr. Karel Van Hoorebeke, No. 50-0107/012. - Text adopted by the Commission, No. 50-0107/013. - Text adopted in plenary and transmitted to the Senate, No. 50-0107/014.
Full report: meeting of 21 March 2002.
Regular session 2001-2002.
Senate.
Parliamentary documents. - Project referred to by the Senate, No. 2-1087/1. Amendments, n^bones 2-1087/2 to 2-1087/5.
Regular session 2002-2003.
Report of Mr. M. Mahoux on 31 October 2002, No. 2-1087/7. - Text amended by the Commission, No. 2-1087/8. - Amendments, No. 2-1087/9. Text amended by the Senate and referred to the House of Representatives, No. 2-1087/10.
Annales du Sénat : séance du 12 décembre 2002.
House of Representatives.
Parliamentary documents. - Draft amended by the Senate, No. 50-0107/015. - Amendments, n^bones 50-0107/016 and 50-0107/017. - Report of March 4, 2003 by MM. Servais Verherstraeten and Karel Van Hoorebeke, no. 50-0107/018. - Text adopted by the commission, no. 50-0107/19. - Text adopted in plenary and referred to the Senate, No. 50-0107/020.
See also:
Full report: meeting of 13 March 2003.
Senate.
Parliamentary documents. - Draft amended by the House of Representatives, No. 2-1087/11. - Amendments, No. 2-1087/12. - Report of March 19, 2003 by Mr. Mahoux, No. 2-1087/13. - Text amended by the Commission, No. 2-1087/14. - Text brought back by the Senate and referred to the House of Representatives, No. 2-1087/15.
Annales du Sénat : séances des 26 et 27 mars 2003.
House of Representatives.
Parliamentary documents. - Project brought back by the Senate, No. 50-0107/021. - Amendments, no. 50-0107/022. - Report 1^er April 2003 by 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, No. 50-0107/025.
Full report: session of 1^er April 2003.