Judicial protection (special administration) or amicable protection (mandate) in case of reduced competence

J.P. Verhaghen, Lot made drunk by his 2 daughters

Special administration is a judicial protection arrangement when a person's physical or mental health deteriorates to such an extent that he / she is no longer able to represent his / her personal and / or property interests herself / himself. This is also the case if he / she is in a state of waste.

A special administration can be instituted at the request of the protected person, the public prosecutor, the Public Social Welfare Center, or any interested party.

In practice, this is done by means of a request. In our guidance section there is a model. If conflict is possible with other family members, the assistance of a lawyer may be desirable. A specific medical certificate that must not be older than 15 days must be added. Any desired modalities for the implementation of the special administration can be expressed in this request. The law now even contains a checklist of competencies for both the person and the special administrator.

Special Administration was previously only possible for the management of property, now this is also possible for legal acts concerning the person (health care, admission, patient file, ...). Thus, 2 administrators can also be appointed, if necessary. A confidential advisor can also be appointed. He cannot decide but is the first direct contact for the protected person ("pupil"). He is also informed about the special administration.

The appointment of a special administrator by the justice of the peace takes place after a hearing, at which the parties can be questioned, with or without the assistance of a lawyer. Preferably, a loved one is chosen, such as the spouse, partner, parent or other family. The justice of the peace may also summon other persons (e.g. family members). He decides sovereignly about this. Any interested party can appear voluntarily. One then automatically becomes a party, unless opposed at the hearing. As needed, the justice of the peace will order another expert investigation (and collect any other useful information).

The justice of the peace determines the competencies of the administrator, tailor-made as much as possible and on the basis of the checklists in the law. The decision is published as an extract in the Belgian Official Gazette. The justice of the peace appoints a special administrator to assist or represent the protected person. It can also be indicated that a separate authorization is required for certain actions. The special administrator for actions concerning the person will usually also be responsible for the goods, unless the court considers it necessary to appoint someone else for this.

The protected person may choose a counselor who will assist him during the special administration. If the protected person can no longer express his opinion, the confidential advisor will defend his wishes to third parties in his place. He is the link between the protected person and the special administrator(s). The counselor also exercises a certain form of supervision: he intervenes if the special administrator were to abuse his position. He then turns to the justice of the peace, who either appoints a new special administrator or changes competencies.

After his appointment, the administrator draws up a report about the person within 6 weeks on the concrete living conditions, and for the goods also an initial report within 6 weeks for the presentation of the assets and income sources. A management report is also drawn up every 2 years. These reports are included in the central register of protected persons (Federation notaries). The confidential advisor will also be informed. Once this register is operational, it will function as a database. (later lawyers and bailiffs will also be able to access it). Any further notifications or requests will be made through this register.

The administrator does not have to perform his assignment without remuneration: he can receive an amount of maximum 3% of the income of the protected person.

Managing someone else's assets involves a risk of abuse. That is why the law provides for a number of regulations that limit the options of the special administrator and ensure an inspection:

A special administrator cannot simply perform all actions, the judge determines the scope of the administrator's competencies. He takes into account what the person can still do himself. For some actions, a special authorization from the judge is required in any case. These are listed in the law. This includes taking out a mortgage and changing residence. The special administrator may not perform any other actions, also listed in the law, such as recognizing a child, drawing up a will, request for euthanasia, etc.. are you not entirely sure which actions you may perform as a special administrator or how you should obtain an authorization, an interview with a lawyer can be very useful;

In any case, the special administrator must manage the property with due diligence. The intention is that the special administrators keep each other, the confidential adviser and the protected person informed as much as possible about the performance of their duties;

The law emphasizes that the assets of the special administrator must be clearly separated from the assets of the protected person. If a conflict of interests arises, the justice of the peace will appoint an ad hoc special administrator for the act in question;

In addition, the justice of the peace also exercises control through the special administrator's reporting obligation. The special administrator of the property must make an annual report and submit it to the justice of the peace and to the protected person, unless the judge has imposed a different arrangement. The justice of the peace arranges the modalities for the special administrator of the person. The report contains an overview of the actions. The law determines what such a report looks like. At the start of the special administration, a report is required that summarizes the assets of the protected person. After termination of the special administration, the special administrator must submit a final report within 30 days;

Any neighbor can turn to the justice of the peace to obtain a termination of the special administration, if he / she believes that the regime is seriously wrong. The office will be happy to help you with this.

(revision until 2.6.2019 and including the new legislation of 21.12.2018 and in force since March 1, 2019).