How to prepare the future of a person with Down syndrome: guardianship, curatorship and legal protection

Table of Contents

1. Why anticipate legal protection?

2. Legal protection measures

3. Choosing between guardianship and curatorship

4. Steps to establish protection

5. Designating the guardian or curator

6. Preparing the succession and future

Why anticipate legal protection? {#why}

Upon reaching adulthood: becoming legally autonomous

At 18 years old, every person becomes an adult = legally capable (sign contracts, manage their money, vote).

But: If the person with Down syndrome cannot manage their affairs alone (limited discernment, vulnerability) → need for protection.

Risks without protection

1. Financial abuse

Vulnerability: Manipulation, fraud, reckless spending.

Examples:

• Signing excessive loans
• Donations to ill-intentioned individuals
• Compulsive purchases

2. Harmful decisions

Signing contracts without understanding (lease, sale, marriage).

Possible serious consequences.

3. Lack of representation

If the parents pass away without protection in place:

• Who manages the inheritance?
• Who makes medical, administrative decisions?
• Risk of being placed under protection by default (guardian appointed by the judge, not necessarily the desired person).

Benefits of anticipating

1. Legal security

Protection against abuse, informed decisions.

2. Choice of protector

Designate a trusted person (sibling, relative) rather than a mandated professional guardian.

3. Peace of mind

Knowing that the future is organized = reassurance for aging parents.

4. Respect for the person's wishes

Even under protection, the person retains rights (vote, marriage with judge's consent, will).

Anticipating = respecting their wishes.

Legal protection measures {#measures}

3 arrangements in France (Civil Code):

1. Judicial protection

Temporary measure (max 1 year renewable once).

For whom?

Principle:

Designation:

Rarely used for Down syndrome (insufficient long-term protection).

2. Curatorship

Assistance measure (no total representation).

For whom?

Principle:

Types of curatorship:

Advantage: Preserved autonomy, respected dignity.

3. Guardianship

Representation measure (the most protective).

For whom?

Principle:

Types of guardianship:

Guardian's acts:

Control: The guardian must provide annual accounts to the guardianship judge.

Disadvantage: Significant loss of autonomy.

Choosing between guardianship and curatorship {#choose}

Decision criteria

Assessment of capabilities:

Questions to consider:

If YES to the majority → Curatorship (sufficient assistance)

If NO to the majority → Guardianship (necessary representation)

Principle of necessity and proportionality

The law requires the measure to be the least restrictive possible.

If curatorship is sufficient, no guardianship.

Possible evolution: Move from guardianship to curatorship if progress, or vice versa if deterioration.

Examples

Curatorship:

"My son manages his pocket money, does his shopping, but needs help for big purchases, administrative papers. Curatorship allows us to assist him without making all decisions for him."

Guardianship:

"My daughter does not understand the value of money, she would give everything away. She cannot manage alone. Guardianship fully protects her, I manage everything for her."

Professional opinions

Psychiatrist: Medical certificate required (assesses capabilities).

Psychologist: Possible assessment.

Social workers, educators: Know the person on a daily basis, can enlighten the judge.

Steps to establish protection {#steps}

When to establish protection?

As soon as 18 years old if evident need.

Or later (25, 30 years) if partial autonomy at 18 years, then deterioration.

Recommended anticipation: Do not wait for a crisis.

Who can request protection?

Step 1: Detailed medical certificate

Mandatory.

Written by a doctor registered on the Prosecutor's list (approved doctor).

Content:

Cost: 160-200€ (not reimbursed).

Step 2: Request to the guardianship judge

Cerfa form n°15424 (available on service-public.fr).

Documents to attach:

Filing:

Court of first instance of the person's residence.

Free of charge (no court fees).

Step 3: Hearing by the judge

The judge summons:

Interview: The judge assesses capabilities, listens to the person, explains the measure.

Step 4: Judgment

The judge decides:

Notification of the judgment to the parties.

Step 5: Implementation

The guardian/curator takes office:

Annual report to the judge (mandatory).

Designating the guardian or curator {#designate}

Who can be a guardian/curator?

1. Family member (legal priority)

Advantage: Knowledge of the person, emotional bond, no cost.

Disadvantage: Heavy burden (time, responsibility), possible family conflicts.

2. Professional judicial representative

Trained professional, employee of an association (UDAF, ATMP).

Designated if no family, or family in conflict, or family refusal.

Advantage: Competence, neutrality.

Disadvantage: Less emotional connection, significant workload (often 30-40 cases per representative).

Cost: Financial contribution based on the income of the protected person (deduction from their resources).

Choosing the right family guardian

Criteria:

1. Emotional closeness

Connection with the person, knowledge of their wishes.

2. Availability

Time to manage (administrative, appointments).

3. Skills

Ability to manage budget, paperwork, relationships with administrations.

4. Stability

Age, health (an overly old guardian will need to be replaced).

5. Agreement of the interested party

Respect the opinion of the person with Down syndrome (if able to express it).

Shared guardianship

Possible: Multiple guardians (e.g., 2 siblings).

Advantage: Shared burden, collective decisions.

Disadvantage: Risk of disagreement.

Preparing the guardian

Training: Some associations offer training for family guardians.

Information: Explain the obligations, responsibilities.

Support: The judge can appoint a "substitute guardian" (person who monitors the guardian).

Preparing the succession and future {#succession}

Will

Parents can write a will to:

1. Designate a testamentary guardian

"I wish for [Name] to be designated as guardian of [First Name]."

The judge takes this wish into account (not mandatory, but has strong influence).

2. Organize the succession

Specific bequests for the child with Down syndrome (money, real estate).

Usufruct/naked ownership: Techniques to protect the estate.

Life insurance

Take out life insurance for the benefit of the child with Down syndrome.

Advantage:

Beneficiary clause: Write carefully (with a notary).

Donation

Give while alive (money, real estate) to the child with Down syndrome.

Tax advantages (allowances).

Attention: Organize management well (guardian).

Create a parents' association

Some families create an association to collectively manage the estate, housing for several adults with Down syndrome.

Pooling resources, sustainability.

Discuss with siblings

Essential:

Family meeting to discuss:

Avoid future conflicts by clarifying now.

Document the wishes

Write a document (free, for the future guardian):

Content:

Transmission to the designated guardian.

Renewal and end of protection

Duration of the measure

5 years maximum, renewable.

Before expiration, the judge reassesses (new medical certificate).

Renewal if need persists.

Modification

Possibility to move:

Request to the judge (with updated medical certificate).

End of the measure

If significant improvement: The judge can lift the protection.

Rare for Down syndrome (permanent disability), but possible in some cases.

Frequently asked questions

"Can my child marry under guardianship?"

Yes, but with authorization from the guardianship judge (or parents if guardian).

The judge verifies the free and informed consent.

"Can he vote?"

Yes. The right to vote is maintained (except in exceptional cases by the judge, very rare).

"Can he make a will?"

Yes (even under guardianship), but with authorization from the judge or assistance from a notary.

"Is the guardian paid?"

Family guardian: No (except in exceptional cases by the judge if the burden is very heavy).

Professional guardian: Yes (deducted from the resources of the protected person).

"What happens if the guardian dies or resigns?"

The judge appoints a new guardian (family, or professional representative).

Plan for a substitute guardian in advance (testamentary clause).

Conclusion: Anticipate to protect

Preparing the legal future of your loved one with Down syndrome is an essential step to ensure their protection, safety, and respect for their rights, even after your departure. Choosing the right measure (guardianship or curatorship), designating a trusted guardian, organizing the succession: all acts of love and responsibility that will ensure their future peace.

The keys to well prepare:

1. Assess capabilities: Guardianship or curatorship?

2. Anticipate from 18 years old (or earlier if possible)

3. Designate a trusted guardian (family or professional)

4. Organize the succession (will, life insurance, donations)

5. Communicate with siblings (avoid future conflicts)

6. Document the wishes of the person with Down syndrome

Preparing the future is to love until the end. It is to offer your loved one the certainty that they will be protected, respected, and supported, even when you are no longer there. Do not wait. Act now. For them. For you. For everyone's peace.

DYNSEO resources for daily support:

Legal resources:

Anticipating is protecting. Preparing is loving. Your loved one deserves this security. Offer it to them.