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• Obligations of the legal representative

Obligations of the legal representative

The tutor, curator or mandatary to the person is responsible for a number of aspects.

The person's well-being

The representative has to:

• supervise the care and maintenance of the protected person prudently and diligently;

• ensure the person's moral and material well-being;

• act in the person's interests, respecting their rights and privacy and preserving their autonomy.

In practice, this means the tutor, curator or mandatary has to:

• take into account the desires, wishes and (religious or other) values expressed by the person under protection;

• ask the person's opinion if they are able to give it, or make choices that the person would make if they were still lucid;

• visit the person regularly to find out what they need, if they do not live under the same roof;

• find out about the person's well-being from the staff of the residential facility, if the person does not live at home;

• look for another solution if the person's living conditions deteriorate.

The person's surroundings

The representative is not necessarily expected to take the person in and accommodate them under their own roof. They may arrange for someone else to accommodate and maintain the person. However, the representative must ensure that the person lives in an appropriate setting, given their state of health and income, and taking into account their wishes.

Examples

• The vulnerable person has always made it clear they want to stay in their own home for as long as possible: a home care aide or meals-on-wheels would therefore be preferable to a residential facility, even if the residential solution would make life simpler for the family and friends.

• The person lives in a large home that is hard to maintain: a smaller apartment or a residential facility with on-site medical care may be the answer, given the person's preferences and income.

Review of protection

The tutor, curator or advisor may ask for the protection measure to be reviewed at any time, depending on the person's state of health. The mandatary may also do so:

• if the mandate provides for progressive protection;

• if the mandate is insufficient and the mandatary wants to request the opening of a tutorship or curatorship to augment it.

By law, the representative is obliged to arrange for reassessment of the person's condition:

• every three years, if they are a tutor or an advisor;
• every five years, in the case of a curatorship.

The representative to the person may also ask the court to lift the protective supervision if the person is no longer incapacitated.

Defending the person's rights

The representative to the person (tutor, curator or mandatary) has to defend the protected person's rights, even if these rights pertain to the person's property.

However, the mandatary to the property may institute legal proceedings concerning this property.

Monitoring the management of property in a tutorship or curatorship

The representative to the person is not supposed to manage the person's property. However, each year they receive a copy of the annual administration report that their counterpart responsible for property gives to the tutorship council and the Curateur public. Based on this report, they can form an opinion about the other representative's performance. If something is wrong with the administration, the representative can ask the court to appoint someone else to manage the property.

If the person moves

If the protected person moves to a new address, it is the duty of the tutor or curator looking after the person to notify the Curateur public.