Protective Measures: Legal insights

By Attorney at Law Suhendra Leon. This email address is being protected from spambots. You need JavaScript enabled to view it.

Our firm was approached by a client requesting assistance because an institution did not understand what a person being under guardianship entails. It is not the first time I have encountered the particular situation whereby there is lack of knowledge regarding the different protection measures. Furthermore, there may be people struggling with family members who, due to (mental) illness or age, are not able to handle their own affairs. Therefore, my article today is aimed to increase the general knowledge of the different protection measures that are legally possible.

The first book of the Civil Code provides different protection measures to protect persons that are not able to handle (part) of their own affairs. All these measures can be imposed by the Court of First Instance at request of a spouse, a partner, a relative till the fourth degree, and the Public Prosecutor’s Office. All the requests to the court, to impose such a measure, must be duly substantiated with doctor reports and other documentation.

Guardianship (in Dutch, “Curatele”)

The most far-reaching measure is the guardianship. This measure can be imposed if a person is not able to manage their own affairs because of a mental illness that may or not may come up temporarily. Furthermore, it can be imposed if a person squanders his money or if the person has an addiction to drugs or alcohol, and cannot organize their own affairs, repeatedly misbehaves in public and poses a danger to self or others.

Examples I have encountered during my career in regard to guardianship are persons with bipolar disorder during a manic episode, persons dealing with addiction, persons with dementia or persons who have lost most of their faculties due to a stroke or heart attack.

If a father has a younger girlfriend and decides to travel the world with said girlfriend and spends most of his money doing so, the children may be mortified that the parent is squandering their future inheritance, but that does not mean that this situation qualifies as squandering in the sense of the law.

In cases of addiction that merits guardianship, the court can also decide to place the person in an institution to receive treatment if the person repeatedly misbehaves in public and is a danger to himself and to others.

In my experience, there are limitations in Sint Maarten with regard to placement in the institution stipulated by law. Before requesting such measure, it is recommendable to reach out to the institution to assess the possibilities they have. This sadly means that in Sint Maarten, not everybody that needs treatment can receive treatment.

From the moment the court decides that a person is under guardianship, the person becomes legally incapacitated. This means that agreements the person enters can be nullified by the guardian. The court appoints a guardian that is competent to represent the person in all legal acts; for example, all dealings with banks, census, entering and cancelling agreements, taxes and selling or purchasing property.

The person under guardianship is only competent to perform legal acts with written permission of the guardian. The guardian is also the one that makes decisions with regard to matters pertaining to the (health) care of this person. Naturally, the guardian has to consult and involve the person in those decisions as much as possible.

Regarding family law matters, for example, marriage or to recognize a child; a person under guardianship requires permission of the court to proceed.

Administration (“Bewind”)

If a person is not able to handle his financial affairs due to his physical or mental condition, the court can impose a protective measure and appoint an administrator for goods belonging to this person.

The administrator is the only person authorized to manage the goods under the administratorship. The owner needs cooperation of the administrator or the court to dispose of the goods under administratorship.

Mentorship (“Mentorschap”)

If a person is not able to handle non-financial affairs due to his/her physical or mental condition, the court can appoint a mentor for this person. The mentor will handle matters related to (health) care.

The mentor has to consult and involve the person as much as possible in this decision-making. Furthermore, the mentor advises the person under mentorship and promotes the development of the mentored to take care of his/her matters, so far as this person is able to do so.

Administration and mentorship can be imposed together. Examples where this measure can be imposed are in cases of persons with Down syndrome or (severe) autism. In the Netherlands, there are career guardians, administrators or mentors that earn their living with this kind of work. In Sint Maarten, we have to mostly rely on loving family members.