Mentorship, administration and guardianship

It is not only children who need protection; some adults must also be protected, as not everyone is capable of taking care of themselves or capable of arranging their financial affairs. This can, for example, concern people with a limited mental capacity, psychiatric patients, addicts or people with dementia. They cannot always properly arrange and oversee their personal interests, and can easily become the victim of misuse by others. The court can appoint a guardian, administrator or mentor for the protection of these people. This person will then make the financial decisions for the person concerned, or make decisions regarding the care which is provided to the person concerned. Guardianship, administration or curatorship can be applied for by the person concerned personally, the partner or by relatives up to the fourth degree. In special cases, a protective measure for adults can also be applied for by the Public Prosecutor or the institution or residential facility where someone resides.

There are three different types of protective measures:

•Administration
•Mentorship
•Guardianship

Administration and mentorship

Administration is intended for people who are not (or no longer) capable of arranging their personal financial affairs. Mentorship is intended for people who can no longer take care of their personal interests. In that case, it concerns the making of decisions regarding care, nursing, treatment and/or assistance of the person concerned. Administration and mentorship can be applied for at the same time if so required. Guardianship, administration and mentorship end when the period recorded by the court has expired, when the person concerned can take care of his or her personal interests again or if the person concerned dies.

Guardianship

In the case of guardianship, it concerns people who cannot (any longer) personally arrange their financial and personal affairs. The consequences of a guardianship are the most far-reaching. Someone placed under a guardianship order loses all legal capacity. This means that he or she can no longer independently enter into agreements, such as a rental agreement. The protection in case of a guardianship order also reaches further than administration and/or mentorship. It is not possible to apply for administration or mentorship in addition to guardianship. However, a guardianship order can possibly be changed later into administration or mentorship or vice versa. Proceedings must be commenced again before the court to arrange this.

Conditions and requirements

The guardianship, administration and mentorship orders are only possible with regard to adults. With regard to persons up to the age of 18, the parents or guardian take care of the interests of the child. If required, they can apply, prior to the child reaching maturity, for a guardianship order, administration order or mentorship, so that the measure automatically comes into effect at the time that the person reaches maturity.

It is sometimes necessary that measures are taken quickly while the application for guardianship is still being dealt with. In that case, the court can appoint someone who will temporarily make the financial decisions for the person concerned; this person is called the interim administrator. His or her duty ends when the guardianship commences or when the application for a guardianship order is rejected.

Someone who wishes to be appointed as guardian, administrator or mentor must be of age. The preference of the person for whom the measure is intended is in principle the determining factor, unless there are reasons to assume that this person is not suitable. The court will hear the person concerned on this matter. However, some other conditions will be set. For example, the guardian, mentor or administrator may not personally be subject to a guardianship order. It is also not possible to appoint a legal entity as mentor or guardian; it must be a natural person. This is different for an administration order; in that case it is indeed possible to appoint a legal entity, such as a foundation, as administrator.

For advice and assistance in case of the applications for a guardianship order, administration order, or mentorship you are at the right firm with Asselbergs & Klinkhamer Advocaten. You can also be assisted by a specialised lawyer from our office, if you would like to be advised or defended because an application for a guardianship order, administration order or mentorship has been submitted against you.

Please contact us.

Family Law