In cases where a person lacks the use of their reason, not uncommon in everyday life, this will have legal consequences. Since they cannot enter contracts with others, it’s particularly important to know how such a person can be protected from superficial actions, while also ensuring that third parties are aware of their situation. This will prevent actions that, being legally void, would not bind the two parties, thus causing more harm to the healthy contracting party, who is unaware of the situation of the other party with whom they are transacting.

1.What phenomenon does the term describe?

It is a fact that when a natural person is not in a good mental state, it is very likely that they will not function rationally. This has not only social/emotional consequences but also legal ones, as if they transact with others who are unaware of their condition, the latter will suffer harm to their interests. For this reason, and for the protection of the person’s family itself, the law establishes the institution of judicial support, to which a person may be submitted, who, if suffering from any serious disability capable of affecting their functionality, will now be guided by another person, appointed by the court, called a judicial supporter. The latter (who may be a relative of the person) is responsible for the legal actions to be drawn up by the supported person, who will henceforth act only under the instructions and always with the approval of their judicial supporter.

2.What does the law require?

For a person to be declared under judicial support, the law imposes certain substantive conditions. These, in more detail, are:

• It must be an adult person (otherwise we are talking about the committee of a minor).
• The person must suffer from a mental/intellectual disorder (it does not need to be permanent though).
• The person must even suffer from physical disability, without necessarily having any mental illness.
• The disorder must be particularly serious, so that the person is unable to take care of their affairs.
• Otherwise, the person should be a victim of prodigality/drug addiction/alcoholism (none of these needs to have lasted for a long period of time).
• Due to these conditions, their family and their overall financial situation should be at risk.
• Even the elder people can fall into the above categories, especially if they exhibit any of the above phenomena (dementia being more common in practice).

3.And the procedure of judicial support?

For a person to be placed under judicial support, the court does not intervene ex officio: instead, an application from the concerned individual is required. Moreover, it is crucial for the applicant to submit a report from the competent social service, based on which it is essentially established that the person to be placed under judicial support does indeed suffer from the phenomena mentioned above, and thus it is not merely speculation/doubt, etc. However, if the relevant report is not submitted, the court will adjudicate the case without any grounds for invalidity.

In general, in this procedure, the system of voluntary jurisdiction is followed, which we will also address separately in our analysis. We can simply say that there are no adversaries involved:instead, the applicant must persuade the court itself about the truth of their claims for their application to be accepted. The supported person themselves may be called upon to testify if the court deems it necessary to form the necessary legal conviction.

However, for the appointment of the judicial supporter to be valid, on the one hand, the decision of the court accepting the application and ordering the person to be placed under judicial support must have been published, and, on the other hand, this decision must have been recorded in a special public register, maintained to inform third parties about the mental state of the person with whom they may transact in the future.

4.What are the forms of judicial support?

It is important to note that judicial support as a procedure has many forms, precisely to serve the various purposes and needs of social reality. Specifically, it is distinguished into:

• Restrictive judicial support, when the person is prohibited from conducting any transaction without the consent of the judicial supporter.
• Assistive judicial support, when for all or at least some of the person’s matters, the consent of the judicial supporter must have been given beforehand, otherwise they will be void.

The above forms of judicial support are further distinguished depending on whether the prohibition applies to all or some of the actions of the supported person:

• Partial judicial support, when the above prohibition applies only to certain matters of the person and not all of them (e.g., they are allowed to enter into contracts but not exceeding €1,000).
• Full judicial support, when the above prohibition applies to all matters of the person, and thus they cannot undertake any of them without the consent of the judicial supporter.

5.Who can submit the relevant application?

At this point, the law is particularly specific and leaves no room for broader interpretations. Specifically, it is stipulated that the application may be submitted by:

• The person experiencing the disorder themselves (including all other cases mentioned above).
• Their spouse, as marital cohabitation is required: the partner is excluded.
• The person’s parents.
• Their children, even if they are adults.
• The public prosecutor, if they become informed of the above facts and believe that the conditions of the law are met.
• The court ex officio, i.e., without any application being submitted by anyone (which is rare in practice, as almost always the application will have been submitted by someone).

If the person who wishes to submit the application does not fall into any of the above categories, and thus is not authorized to submit the application, they are entitled to ask the public prosecutor to submit the application: to present them with the evidence justifying the submission of the person to judicial support, and the public prosecutor to submit the application due to their capacity, without violating the provisions of the law, i.e., the application is not at risk of being rejected as inadmissible.

6.When can juridicial support cease?

Legal representation can cease initially when the conditions required by law cease to exist, i.e., when the person regains the use of their reason/no longer suffers from disturbance as previously/experiences recovery from problems such as dissipation/addiction, etc. However, the determination that the above situations have ceased to exist is at the discretion of the court, which must consider these events as reasonably likely.

To lift legal representation, an application must be submitted to the court by the individuals mentioned above, invoking the person’s improved condition and thus the subsequent unnecessary need for legal representation.

At this point, it is necessary to make two observations:

• If the person suffers exclusively from physical disability, and therefore not from a disturbance of consciousness (e.g., is bedridden/uses a wheelchair for their needs), then only that person is authorized to submit the application for the lifting of legal representation, and no other person as a result.
• If the legal representative becomes aware of circumstances justifying the lifting of legal representation (e.g., that the person has regained their reason and overcome their ailments), then the representative must notify the court of these circumstances so that it can judge accordingly.

7.What are the consequences?

If the application to subject the person to legal representation is accepted by the court and published in the manner described above, specific consequences ensue:

• The person is capable of exercising only the specific legal actions defined in the decision (possibly none if the decision includes a complete ban).
• The court is not prevented from modifying the terms imposed on the person by a subsequent decision, depending on how the circumstances change.
• The person is indicative that they cannot engage in charitable actions = make donations to third parties, accept payment of claims from third parties, or provide payments = provide proof of payment, enter into debt relief agreements, consolidate debts, etc.
• The court has the power to assign the management of the person’s property to the legal representative, who will henceforth be solely responsible for related matters.
• If explicitly provided for in the judicial decision, the legal representative will also be responsible for the person’s personal relationships = friendly/family relationships, provided they directly affect the person’s personality.

8.What powers does the legal representative have?

As mentioned in the previous question, the legal representative is the one who, by giving their consent or themselves initiating the person’s legal action, makes it valid. Thus, if the representative does not give their consent, any legal action undertaken by the person will be void = no legal consequences will be produced for either party.

The said consent must be provided in writing by the legal representative before undertaking any legal action by the person. In cases where the representative gives their consent retrospectively = after the legal action has been undertaken, then it may be considered valid provided that the other conditions of the law are met. For example, if it concerns the transfer of real estate and no notarial document has been drawn up, the consent of the legal representative is irrelevant, as in any case the contract will be void.

In the performance of their duties, the legal representative is assisted by a supervisory board, consisting of 3-5 members, who are relatives/friends of the person and are appointed by the same judicial decision appointing the legal representative. Finally, if the legal representative refuses to give consent for the person to undertake an act, the court will decide, upon submission of a relevant application by the assisted person, the decision on which will resolve the disagreement.

9.What happens in case of children;

In this case, another institution applies, called the guardianship of a minor. More specifically, it is defined that a minor, whose both parents cannot exercise parental care, may apply to the court to appoint a guardian, who will manage the affairs of the minor. By the term ‘affairs of the person,’ we generally mean all the needs of the minor, which would normally be regulated by their parents (such as their school environment, personal development, management of any property inherited by the minor, etc.).

In urgent cases, if a guardian has not yet been appointed or if the appointed guardian has resigned, the head of the social service to which the minor is affiliated may assume the duties of the guardian. This means that they will carry out all the aforementioned acts if they are deemed urgent and cannot be postponed further (e.g., a significant medical intervention that the minor needs for their health).

Finally, the guardian may decide to admit the minor to a specialized institution if their physical/mental condition requires it. Furthermore, the guardian has the authority, provided there is a suitable family that could take care of the minor, to assign parental care of the minor to that family in the future.

10.Can the assisted person draft a testament;

Based on all the above, it is clear that a person under legal representation certainly lacks the necessary capacity required by law to validly draft a will (otherwise they would not already be in such a situation). But what happens if the person drafts a will in the interim period = before being declared under legal representation; The law provides answers to this specific issue by stipulating that:

• If the assisted person drafted a will and died before the decision declaring them under legal representation became final, then the will is valid, and those mentioned in it inherit normally.
• If an application for the lifting of legal representation had been submitted, and until it was accepted the assisted person managed to draft a will and subsequently died, then the will is still valid.
• In the previous case, the application for lifting must have been accepted = if it was ultimately rejected, the will would not be valid.
• Therefore, the timing of the drafting of the will in relation to the death, especially if it precedes/follows the declaration/lifting of legal representation, is crucial.

 

The above does not constitute legal advice, and no liability is assumed for it. For more information, please contact us.