The advice of Montpellier lawyer Me Parnot to challenge a guardianship measure

Me Mélanie Parnot explains the possibilities of recourse to challenge a guardianship measure.

Mélanie Parnot of the firm Iparme, is a lawyer from Montpellier specializing in the field of guardianship. In addition to the protected person of full age, any person close or not to the protected person can report a difficulty or malfunction related to the implementation of a protection measure, in particular by the agent, if it is of course legitimate to do so. To do.

In other words, family, friends, home medical workers, etc. The lawyer first advises writing to the guardianship judge, responsible for monitoring the implementation of these measures.

27 minutes per person

Nevertheless, these judges are understaffed in France. “We calculated two years ago that, given the number of measures in progress and the number of guardianship judges, each has an average of 27 minutes per year and per protected person. This is very insufficient given the stakes and the complexity of this matter and the situations of the people”, analyzes Mélanie Pardot, initiator of an information tool for relatives of protected persons.

In the event of an offence, it is necessary to seize the public prosecutor or even the defender of rights. Guarantor of compliance with the International Convention on the Rights of Persons with Disabilities, ratified by France in 2010, which stipulates that people with disabilities, even cognitive ones, “are guaranteed not to be deprived of their liberty” in its article 12, recalls the jurist. She notes in a 2019 UN report that “far from being protected, people under guardianship in France are deprived of their rights and exposed to mistreatment and the risk of being placed in an institution”.

80 liberal agents

The defender of rights if he is seized of a particular situation “may send recommendations to the guardianship judge or the guardianship authority, the general directorate of health or the directorate of social cohesion”. The guardianship judge can then ask the agent for explanations or even have him replaced. And in the event of an appeal and modification of the measure, the family must be able to be informed. She can appeal the decisions of the guardianship judge.

The role of judicial representative is a regulated activity which can engage the responsibility of the State. He is appointed on application by a departmental accreditation commission. Since 2013, they must hold a national competency certificate (CNC). In the Hérault, there are 80 liberal agents and four salaried tutors in establishments for dependent people.

The guardian exercises respect for the will of the protected adult

At the time of the designation of the agent by the justice, despite the ideas received on the subject, it is the person concerned who chooses the agent appointed by the judge (family, associative or liberal) unless it is against his interest. The representative who can be associative or liberal. “The guardian decides everything but exercises his mandate in accordance with the will of the protected adult who can say “no””assures Me Parnot, who adds that the families “always have a duty to take care of their loved ones alongside the curator or mandatary.”

Digital tools to help with legal protection

“95% of cases arrive before the guardianship judge without a lawyer, noted Me Mélanie Parnot, specialized lawyer. There are very few professionals competent in the matter. Out of 1,200 lawyers in Montpellier, I am the only one and in Paris, there are only 30 than 30,000 registered with the Paris bar.”

This clearly poses a problem of access to the law for these people and their relatives. Especially since according to the last census in 2017, there would be a million individuals in this situation in the country, and if not as many members of their families involved. “We looked for more recent figures but we did not find any, and we do not have detailed figures by department either”, points out Me Parnot who recalls that there are 80,000 requests for protective measures made. per year in France.

Anticipating dependency Based on the observation of a cruel lack of information on the functioning of legal protection measures, Me Mélanie Parnot founded the start-up “Droits Journies Legal Tech” with the help of the incubator of the Montpellier Bar , and a Belgian association “which has been working for 20 years on a methodology to produce clear legal information”. And implements digital tools for this. In March 2020 after three years of work, it launched an online guide to help with the legal protection of people with loss of autonomy, to prevent and raise awareness among the general public.

The start-up will soon launch a platform to allow social workers (home help, social worker, occupational therapist, etc.) but also lawyers, to train in guardianship procedures. A space for people with loss of autonomy and their families allowing them to complete an application file online with contact with a specialized lawyer.

“The real problem is that this question is taboo. The protective measures are taken under duress. When it happens, we don’t choose anything”, pleads Me Parnot, who defends the possibility of anticipating by providing by contract a mandate for future protection. In particular to facilitate home care.

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