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The widening of the possibility of tax exemptions for legal guardians (authorized by the Court of Ca

According to the Ministry of Justice, as of December 31st, 2014, there were slightly fewer than 680,000 adults under judicial protection, including the 365,000 persons under guardianship (54%) and the 313,000 persons under curatorship (46%).

There are three legal protection systems in France: the safeguard of justice, curatorship and guardianship. These programs are put in place by the guardianship judge when illness, disability, or accidental injuries impair the abilities of a person and render them incapable of defending their interests alone. An individual, primarily a family member, is then appointed to protect that vulnerable person and to assist or represent him or her in the actions that he or she is required to take. One word of order: the protection must be the least restrictive possible, given the faculties of the protected.

According to the Ministry of Justice, the average age of protected persons varies according to the type of measure and their gender: persons under guardianship are on average 64 years old and nearly 10 years older than those under curatorship. Similarly, women under this protection are on average 12 years older than their male counterparts. While women are slightly in the majority of the population of protected adults, they are particularly populous in the number of persons under guardianship over the age of 80.

The Court of Cassation delivered a judgment on the subject of protection measures for adults on October 17th, 2018, n ° 16-24.331. The case involves two spouses placed under a measure of curatorship, ordered in 2008, in which their niece was designated as the curator. The wife died in 2010, the husband in 2011, leaving behind their only son, Guy. Both spouses had appointed two beneficiaries of their life insurance policies: the other spouse and their niece. In addition, the surviving spouse had, 3 months before his death, written a holographic will (written by hand and dated and signed by the author) in which he made his niece and wife equal beneficiaries of his life insurance policy. His son, Guy, protested these provisions, pointing out the exaggerated premiums paid on life insurance contracts and his belief that the curator should not legally be able to accept the premiums due to a potential conflict of interest.

The Court of Appeal granted him cause: on the basis of Article 909 of the Civil Code ("the curator can not receive tax exemption benefits from those under their protection”) the niece and her husband must return the fraction of the premiums deemed exaggerative to the estate.

The latter form an appeal in cassation. The Court quashed the judgment for violation of Article 909 of the Civil Code:

"Whereas the inability to receive tax exemptions in this text concerns only the judicial representatives for the protection of adults and the legal persons in whose name they perform their duties; the members of the deceased's family, when acting as guardian, curator, special representative appointed during a legal action, an authorized person or a mandatory executing a future protection mandate, do not fall within this scope;

Whereas, to say that Mr. X has no right in the estate of Jean-Baptiste Z and to condemn him to pay Mr Z a certain sum, the judgment holds that the inability to receive tax exemption concerns Ms W, the curator of the deceased, that her husband is presumed to be an interposed person and that, failing to prove the reality of the liberal intention towards him, he can not avail himself of the testamentary dispositions for his benefit; that by ruling thus, while Mrs. X, niece of the deceased, did not have the quality of judicial agent to the protection of the majors, although she exercised the functions of curator, the Court of Appeal violated the text referred to above.

It should be noted that, given the lengthening of life spans and the isolated situations in which older people tend to find themselves, this judgment tends to serve as a precedent in terms of forbearances made within the framework of a protection measure.

At its core, the prohibition of Article 909 of the Civil Code for a guardian to receive tax-exempt monetary amounts from the person under their protection was made to avoid placing pressure on vulnerable people. This applies especially to professionals likely to have an influence on the vulnerable person, such as:

- "…members of the medical and pharmacological professions, as well as medical assistants who have cared for a person during the illness from which they die"

- …ministers of religion (in fine)

- "The legal representatives for the protection of adults and the legal persons in whose name they perform their duties" since the enactment of the law on March 5th, 2007.

However, the law reserves, in the last paragraph of the article, an exception to this provision in the case where the person prohibited from being a beneficiary is related to the up to 4th degree inclusive, provided that there is no heir in a direct line.

The question put to the Court of Cassation was therefore the following: do these restrictions on tax exemptions apply only to judicial officers for the protection of persons, i.e. professional representatives, or all representatives of vulnerable persons, professionals or not?

This decision has thus provided the first opportunity for the Court of Cassation to position itself within the new paragraph of the article, integrated by the law of 2007. Thus, any non-professional agent representing a vulnerable person should, in principle, be able to receive tax exemptions from the individuals they represent.

However, the high court only refers to members of the family of the deceased, whereas the non-professional representative of a person placed under protective supervision can also be a friend, a relative or a person of trust. Should the interpretation be extended to these people or restricted to family members only?

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