Only a doctor can establish that a person is impaired and must be placed under guardianship for more than five years by the judge

The curatorship and guardianship regimes are the two permanent protection regimes for adults.

The guardianship measure concerns adults with a lasting disability requiring advice or supervision in the acts of civil life while retaining partial autonomy.

The guardianship measure concerns adults who must not only present a medically noted alteration of their mental or physical faculties in such a way as to prevent the expression of their will, but must also be represented continuously in the acts of civil life.

In accordance with Article 441 paragraph 1 of the Civil Code, the judge shall determine the duration of the guardianship measure, which may not exceed five years.

However, in accordance with Article 441 paragraph 2 of the Civil Code, the judge may decide to set a longer period, but in no case longer than ten years, in the context of a specially reasoned decision and with the support of the opinion of a doctor registered on the list mentioned in Article 431 of the Civil Code.

The doctor’s opinion must state that the alteration of the adult’s mental or physical faculties described in Article 425 of the Civil Code clearly does not seem likely to improve according to scientific data.

In this case, the guardianship judge of the Riom Court of Appeals entered a judgment on March 13, 2018, placing Mrs. B. under guardianship for a period of ten years.

The Riom Court of Appeals, in determining this ten-year term, relied on two medical certificates.

The first medical certificate mentioned cognitive disorders including a dysexecutive syndrome responsible for reasoning disorders as well as memory, judgment and behavioral disorders with refusal of care.

The second medical certificate stated that Mrs. B. suffered from multiple sclerosis and had virtually no autonomy.

Mrs. B. then appealed this judgment, stating that contrary to the provisions of Article 441 paragraph 2 of the Civil Code, the Riom Court of Appeal had not taken the trouble to inquire at the time whether there was an opinion from a doctor on the list mentioned in Article 431 of the Civil Code who would have indicated that her personal faculties would not be likely to improve according to the acquired data of science.

The First Civil Chamber of the Court of Cassation confirmed in this case its previous jurisprudence (Civ. I. 27 June 2018, n ° 17-20.586) by annulling the judgment of the Court of Riom for lack of legal basis with regard to Article 441 paragraph 2 of the Civil Code.

In this case, in addition to a specific motivation, a medical report meeting the precise criteria of the Civil Code is essential to allow the judge to derogate from the five-year period regarding a guardianship measure in order to set a longer period.

The Court of Cassation has thus reaffirmed its control over the regularity of medical certificates on the non-evolution of the state of health of a person likely to be placed under guardianship drawn up by doctors registered on the list mentioned in Article 431 of the Civil Code .