Provisional administration of property
The provisional administration of property is a protection regime established by the act of 18 July 1991. The purpose of this regulation is to protect the persons who are wholly or partially, temporarily or definitely incapable of assuming the management of their assets because of their physical or mental state.
This particular matter is governed by article 488bis of the Civil Code.
The provisional administration of assets applies mainly to the following categories of persons :
- the mentally ill
- the mentally disabled persons
- the victims of an accident or the persons with a physical disability, who, temporally of definitely, cannot ensure the management of their assets
- the aged persons suffering a disability
It therefore concerns a measure to protect adults who are no longer capable of managing their assets. These adults are provided with a person to take on their behalf – and to secure the protection of their estate - measures and decisions concerning them.
The Act of 1991 was designed to allow a great flexibility and to give to the judges the possibility to conform to each particular situation. It is aimed at reconciling the protection of vulnerable persons who are likely to be abused financially and at respecting the individual liberty to which each person has a right.
The procedure of provisional administration of assets is introduced by an application before the Justice of the Peace of the place of residence or domicile of the person to be protected.
The applicant may be the person to be protected himself, each interested party (family member, a close relative, doctor, social worker,…) or the public prosecutor.
Save in cases of emergency, the application has to be accompanied by a detailed medical certificate.
After having heard the person to be protected (as well as the family members), the Judge of the Peace designates a provisional administrator depending on :
- the composition of the assets to be managed
- a person's state of health
- his family situation
The provisional administrator may be a family member or a close relative of the person to be protected (parent, partner, child,…).
In the absence of choice or a consensus, the Judge of the Peace designates systematically a lawyer experienced in this matter and who has the confidence of the Judge.
Furthermore, the person to be protected may also request to be assisted by a person of confidence in the context of the provisional administration. The Judge of the Peace himself can designate this person, who will play an intermediary role between the provisional administrator, the judge and the person being under administration.
The person of confidence may request the Judge to substitute the provisional administrator when he fails to fulfill his duties.
He can also request the Judge of the Peace to review his court order.
In the court order designating the provisional administrator, the Judge of the Peace determines with precision the powers delegated to the latter.
The administrator must of course manage the assets of the person under his administration as a good family father.
In practice, his main tasks are the following:
- to collect the income of the protected person ;
- to pay all the invoices ;
- to carry out a great deal of social and fiscal formalities ;
- to ensure that social legislation is applied properly to the person under his administration and to ensure the preservation of assets of this person;
- to provide to the protected person the sums he deems necessary for the improvement of his condition ;
- to consult regularly the person being under administration and/or his person of confidence.
Other than these everyday tasks, the provisional administrator will often have to request a special approval to the Judge of the Peace to act in particular in the following cases :
- to take legal action (save in a rental case, a case of social security or as a civil party);
- to sell movable and immovable property;
- to buy immovable property;
- to borrow and to consent to a mortgage;
- to respond positively to a request relating to property rights;
- to renounce to a succession or a legacy or to accept under benefit of inventory;
- to accept or consent to a donation or a legacy by particular title;
- to enter into or to renew a commercial lease
The provisional administrator must obviously account for his management.
As a first step he must, within one month following his designation, establish a report concerning the patrimonial situation and the sources of income of the person, whose assets are managed by him. This report must be forwarded to the Judge of the Peace, to the person being under administration and to the person of confidence.
The administrator must then account each year to the same persons for his management. This will be done in the form of a balance sheet , stating on one hand the income and on the other hand the expenses.
The result of the measure of provisional administration is that all acts carried out by the protected person from the date of filing the application, without assistance of his administrator, are void.
In order to protect third parties dealing with a person placed under administration, the law provides that the court order is published in the Belgian Official Journal.
When the task/assignment is not carried out on a voluntarily basis, the law provides that the fee of the provisional administrator shall not exceed 3 % of the income of the person to be protected.
On top of this regular/normal fee, the Judge of the Peace may allow a special fee in case of exceptional duties.
The measure of provisional administration comes to an end :
- at the request of the protected person, when the situation of the latter justifies it no longer (on the basis of a new detailed medical certificate)
- after the death of the protected person.