Dutch
Civil Code
Book 1 Law of Persons and Family Law
Title 1.19 Fiduciary administration for adults
Article 1:431 Grounds for a fiduciary administration for adults
- 1. If an adult
proprietor is temporarily or permanently unable to look after his own
interests in property, due to:
a. his physical or mental condition, or;
b. squander (reckless spending) or the presence
of problematic debts;
the Subdistrict Court may establish a fiduciary administration over one
or more of the assets that belong or will belong to him as proprietor.
Assets belonging to a proprietor in the sense of this Title include assets
belonging to a marital community of property or to a community of property
within a registered partnership that do not fall under an exclusive right
of administration of the spouse or registered partner of that proprietor.
- 2. If it is to be expected that a minor,
at the moment on which he will reach the age of legal majority, will be
in a situation as meant in the previous paragraph, then a fiduciary administration
order may be given even prior to the moment on which the minor reaches
adulthood.
- 3. A fiduciary administration may be established
as well if it is to be expected that the proprietor in the foreseeable
future will be in a condition as meant in paragraph 1.
- 4. Where legal proceedings are pending at
court to obtain a provisional or conditional authorisation, an authorisation
for a medical observation, an authorisation for a continued stay under
the Reception into Psychiatric Hospitals Act or an authorisation under
Article 33, first paragraph of that Act, that court shall have jurisdiction
as well over a request to place one or more assets of the involved adult
proprietor under fiduciary administration.
Article 1:432 Persons entitled to file a request for
a fiduciary administration
- 1. The establishment of a fiduciary administration
may be requested for by the proprietor himself, his spouse, registered
partner or other life companion, one of his blood relatives in the direct
line or in the collateral line up to and including the fourth degree,
the person who pursuant to Article 1:253sa or 1:253t exercises authority
over the proprietor, his legal guardian exercising guardianship over him
as a minor, his legal guardian exercising adult guardianship as meant
in Title 1.16 and his legal mentor as meant in Title 1.20. In the event
referred to in Article 1:432, paragraph 3, a fiduciary administration
can be requested for only by the proprietor.
- 2. Furthermore, the establishment of a fiduciary
administration may be requested for by the Public Prosecution and by the
institution where the proprietor is looked after or that offers guidance
to the proprietor. The establishment of a fiduciary administration due
to squander (reckless spending) or the presence of problematic debts may
be requested for also by the College of Mayor and Alderman of the municipality
where the proprietor has his place of residency. In both last events the
petition shall mention as well why the persons mentioned in paragraph
1 – blood relatives in the collateral line in the third and fourth
degree not included – have not filed a request for the establishment
of a fiduciary administration.
- 3. The court before which a request for adult
guardianship or for the abolishment of an adult guardianship is pending,
may of its own motion, before rejecting or awarding this request, respectively,
proceed to ordering a fiduciary administration as meant in the present
Title.
- 4. A request to place one or more assets
of an adult proprietor under fiduciary administration, made at a moment
on which this proprietor is placed under adult guardianship, must be filed
at the court that has jurisdiction to decide on the ending of that adult
guardianship. This court may of its own motion, when ending that adult
guardianship, proceed to ordering a fiduciary administration as meant
in the present Title.
- 5. Paragraph 2 and 3 apply accordingly in
case of an assignment of a spouse’s right of administration of property
to the other spouse as referred to in Article 1:91 or in case of a request
for such a court order.
Article 1:433 Substitution of assets placed under
fiduciary administration
- 1. Unless provided
otherwise in the court order in which one or more assets are placed under
fiduciary administration, this administration includes all assets that
must be considered to have come in the place of assets subject to fiduciary
administration, besides the fruits and other benefits derived from property
under fiduciary administration.
- 2. The Subdistrict Court may, either upon
request of the person entitled to request for a fiduciary administration
as meant in Article 1:432, paragraph 1 and 2, or of its own motion, expand
the established fiduciary administration to one or more other assets of
the proprietor or remove one or more assets from the fiduciary administration
and may furthermore order that the rule of paragraph 1 shall not apply
to one or more assets, in which case Article 1:434, paragraph 1, applies
accordingly. The Subdistrict Court may also point out one or more acts
as referred to in Article 1:441, paragraph 1, under (f), and withdraw
the pointing out of such acts.
Article 1:434 Specification of the assets to be placed
under fiduciary administration
- 1. In the court
order referred to in Articles 1:432 and 1:433 paragraph2 the court specifies
of its own motion which assets shall be placed under fiduciary administration
or, respectively, shall be released from fiduciary administration.
- 2. A fiduciary administration of assets and
the release of such assets from an already existing fiduciary administration
shall take effect one day after the court order has been handed over or
sent out to the applicant, unless the court order indicates a later date
for this purpose. In the situation referred to in Article 1:431 paragraph
2 the fiduciary administration shall take effect at the moment on which
the involved minor reaches the age of legal majority.
Article 1:435 Persons to be appointed as legal administrator
- 1. The court that establishes a fiduciary
administration shall appoint at the same time, or as soon as possible
thereafter, a legal administrator. It shall ascertain the willingness
of the person to be appointed and shall assess that person’s suitability.
- 2. If necessary, an interim administrator
may be appointed.
- 3. When appointing a legal administrator,
the court shall follow the explicit preferences of the proprietor, unless
there are valid reasons to object to the appointment proposed by him.
- 4. If the proprietor is married or registered
under a registered partnership or maintains another close personal relationship
with a life companion, then preferably his spouse, registered partner
or that other life companion is to be appointed as legal administrator,
unless the previous paragraph has been applied. If the preceding sentence
is not applicable, then preferably one of the proprietor’s parents,
children, brothers or sisters is to be appointed as legal administrator.
When the proprietor after sometime enters into a marriage or registered
partnership or finds a life companion with whom he starts to maintain
a close personal relationship, then each of these persons may request
the court to become appointed as legal administrator in replacement of
an earlier appointed legal administrator.
- 5. Legal persons with full legal capacity
can be appointed as legal administrator.
- 6. The following persons cannot be appointed
as legal administrator:
a. persons without legal capacity (minors and
adults under adult guardianship);
b. persons on whose behalf a protective mentorship
has been established;
c. persons of whom one or more assets have
been placed under a fiduciary administration as referred to in Title 1.19;
d. persons being in bankruptcy;
e. persons to whom the Debt Repayment Scheme
for Natural Persons applies;
f. the legal administrator of the proprietor
in the sense of Article 287, paragraph 3, of the Bankruptcy Act;
g. an immediately involved or attending relief
or care worker;
h. persons forming a part of the management
or personnel of the institution where the proprietor is looked after or
that offers guidance to the proprietor;
i. persons tied to the institution where the
proprietor is looked after or that offers guidance to the proprietor,
because:
1° the institution or persons forming a part of the management of
the institution, may exercise, solely or jointly with others, more than
one half of the voting rights in the General Meeting of the legal person
or may appoint or discharge more than one half of the Directors or Supervisory
Directors of the legal person;
2° the person and the institution form a part of a group as meant
in Article 2:24b, or;
3° the Director of the legal person also forms a part of the management
or personnel of the institution.
- 7*. Another person than those meant in paragraph
4, who already is a legal guardian of an adult, a legal administrator
or a legal mentor on behalf of three or more persons, is only eligible
for an appointment if he, where it concerns his conduct of business or
education, and, where applicable, the recruitment, training and guidance
of and the supervision over the persons due to which he performs the tasks
of a legal administrator, meets the quality standards set by Order in
Council as well as the requirements meant in Article 1:436, paragraph
4, and in Article 3:15i.
- 8*. The person referred to in paragraph 7,
shall submit to the court appointing him:
a. his declaration from which follows that
he meets the quality standards and requirements meant in paragraph 7;
b. a report of an auditor as meant in Article
2:393, paragraph 1, of his opinions in regard of the way in which the
standards and requirements are met, and;
c. a declaration of the auditor about the balance
sheet and the profit and loss account (income statement) meant in Article
2:10 or, where applicable, about the annual accounts in conformity with
Title 2.9. Article 2:396, paragraph 7, does not apply in regard of Article
2:393, paragraph 1.
Further rules may be set by Order in Council with respect to the layout
and content of the declarations and reports and with regard to the way
of submitting them. Where the person shows that he has already submitted
the declarations and report to a court in the twelve months prior to his
appointment, he is exempted from such submission.
- 9*. Exempted from the obligation to submit
a declaration of an auditor as meant in paragraph 8 are:
a. those who have a financial enterprise which
under the Financial Supervision Act may pursue the business of a bank;
b. notaries,
c. bailiffs;
d. auditors (accountants).
The enterprises and natural persons acting in the course of a professional
practice referred to in the previous sentence may be exempted in full
or in part by Order in Council from the requirements meant in paragraph
7 in respect of recruitment, training and the conduct of business.
- 10. The appointed person will be legal administrator the day following
the one on which the court.
*) The text of this paragraph was already accepted,
but not yet in force on 12th of March 2014.
Article 1:436 Duties of the legal administrator
- 1. The legal administrator must, as soon
as possible, draw up an inventory list of all assets placed under fiduciary
administration and submit a copy of this list to the clerk of the court
that has jurisdiction according to Article 266 of the Code of Civil Procedure.
- 2. Articles 1:339, 1:363 and 1:364 apply
accordingly.
- 3. If registered property is placed under
fiduciary administration, then the legal administrator must, as soon as
possible, present the fiduciary administration order and the court order
in which he has been appointment as legal administrator to the keeper
of the public registers for immovable property as referred to in Section
2 of Title 1 of Book 3 of the Civil Code in order to make the required
registrations. If an enterprise or a share in a commercial partnership
is placed under fiduciary administration, then the legal administrator
must present the relevant court orders for registration to the keeper
of the Commercial Register. The Subdistrict Court may order, either upon
request of the person entitled to request for a fiduciary administration
as meant in Article 1:432, paragraph 1 and 2, or of the legal administrator,
or of its own motion, that the court order for the establishment of a
fiduciary administration on account of a physical or mental condition,
as far as the fiduciary administration concerns all assets that belong
or will belong to the proprietor, and the court order for the appointment,
suspension or discharge of the legal guardian, shall be registered by
the clerk of the court in the public register referred to in Article 1:391.
- 4. Unless the Subdistrict Court has provided
otherwise, the legal administrator must, as soon as possible, open an
account with a credit institution which pursuant to the Financial Supervision
Act is allowed to perform banking activities in the Netherlands; the legal
administrator may only make use of this account for making or receiving
payments in the conduct of the fiduciary administration.
- 5. The Subdistrict Court may at all times
call the legal administrator to court to be heard and questioned. The
legal administrator is obliged to provide the Subdistrict Court with all
the required information.
- 6. The Subdistrict Court may demand from
the legal administrator that he provides insight in his books, documents
and other data carriers. It may furthermore demand a copy thereof.
Article 1:437 Two or more legal administrators
- 1. The court may appoint two legal administrators,
unless valid reasons oppose to such an appointment.
- 2. When two legal administrators have been
appointed, each of them may solely perform all activities falling within
the scope of the ordered fiduciary administration, unless the court has
provided otherwise.
- 3. In the event of a dispute between the
legal administrators the Subdistrict Court shall settle their dispute
upon the request of one of them or of an institution as meant in Article
1:432, paragraph 2. The Subdistrict Court may also establish a division
of the remuneration.
Article 1:438 Administrative acts and power of disposition
- 1. During the fiduciary administration only
the legal administrator and not the proprietor has the right to perform
administrative acts with regard to assets under fiduciary administration.
- 2. During the fiduciary administration the
proprietor may only in cooperation with the legal administrator or, if
the legal administrator refuses to provide the necessary cooperation,
with authorisation of the Subdistrict Court transfer or encumber assets
which are placed under fiduciary administration.
Article 1:439 Protection of third persons
- 1. If a juridical act is invalid because
it was solely addressed to or performed by the proprietor in spite of
an existing fiduciary administration, then this invalidity can only be
invoked against a counterparty who was or ought to have been aware of
the fiduciary administration.
- 2. If an asset is alienated or encumbered
by someone who, as a result of an existing fiduciary administration, had
no power of disposition, then this lack of power can only be invoked against
a party who acquired this asset or a limited property right on it if that
party was or ought to have been aware of the fiduciary administration.
Article 1:440 Recovery of debt-claims from property
under fiduciary administration
- 1. Debts derived from an act performed during
the fiduciary administration with or towards the proprietor otherwise
than in agreement with Article 1:438, paragraph 2, by a creditor who knew
or ought to have known the fiduciary administration, cannot be recovered
from the assets placed under fiduciary administration. The ending of the
fiduciary administration does not change this.
- 2. If the fiduciary administration covers
all assets which pursuant to Article 1:431 paragraph 1, qualify to be
placed under fiduciary administration, then paragraph 1 applies accordingly
to assets which at the moment that the act was performed were not placed
under fiduciary administration from which debts could have been recovered.
Article 1:441 Duties of the legal administrator
- 1. Within the fulfilment of his duties the
legal administrator represents the proprietor during the fiduciary administration
in and out of court. The legal administrator shall ensure that the assets
of the proprietor that are placed under fiduciary administration are invested
efficiently, insofar these assets do not have to be used or sold for the
provision of adequate care on behalf of the proprietor. Furthermore, the
legal administrator may perform all acts on behalf of the proprietor that
contribute to a proper fiduciary administration.
- 2. Nevertheless, the legal administrator
needs permission from the proprietor or, if the proprietor is unable or
unwilling to give that permission, the authorisation of the Subdistrict
Court to perform the following acts:
a. disposing of assets that are placed under
fiduciary administration or entering into agreements to dispose of such
assets, unless the act may be regarded as a normal administrative act
or has to be performed on account of a judicial order;
b. accepting a donation subject to obligations
or conditions;
c. lend out money or engage the proprietor
as a surety or a joint and several co-debtor;
d. agree that an estate, to which the proprietor
is entitled, will be left undivided for a specific period of time;
e. entering into an agreement that makes an
end to a dispute in which the proprietor is involved, except when it concerns
a case as referred to in Article 87 of the Code of Civil Procedure or
when the object of the dispute does not exceed a value of € 700;
f. other acts specified as such in the fiduciary
administration order or in a later court order.
- 3. The Subdistrict Court may also grant the
legal administrator a continuous authorisation to perform acts as meant
in the previous paragraph under such conditions as it considers appropriate,
and it may change or withdraw a granted authorisation at any time.
- 4. The legal administrator is entitled, to
the exclusion of the proprietor, to demand the division of assets of which
an undivided share belongs to the property under fiduciary administration.
For such a division, however, the legal administrator always needs permission
or authorisation in accordance with paragraph 2, even when the division
is made on account of a judicial order. The Subdistrict Court may, as
an alternative for granting its authorisation, also appoint a neutral
person with corresponding application of Article 3:181 who, instead of
the legal administrator, shall represent the proprietor at the division
of property.
- 5. The legal administrator is entitled, to
the exclusion of the proprietor, to accept an inheritance to which the
proprietor has become entitled. Unless the acceptance is made with permission
of the proprietor, the legal administrator cannot accept it otherwise
than under the privilege that first an inventory of the estate of the
deceased has to be made as meant in Article 4:190 paragraph 1.
Article 1:442 Protection of a party acting with or
towards a legal administrator
- 1. If a person has performed a juridical
act in his capacity as legal administrator, then the rights and obligations
of the opposite party are set by the statutory provisions of Title 3.3
of the Civil Code. Statutory and other provisions regulating the powers
of a legal administrator and facts which are important to determine these
powers cannot be invoked against the opposite party if he was not aware
and ought not to have been aware of these provisions or facts.
- 2. Without prejudice to the provisions of
Article 6:172, the proprietor is liable for all obligations arising from
juridical acts that the legal administrator in his function has performed
in the name of the proprietor. Where the proprietor points out assets
under fiduciary administration which provide sufficient recourse for a
liability, he is not required to satisfy this debt from his other property.
Article 1:443 Authorisation to start legal proceedings
Before the legal administrator starts any legal actions on behalf of the
proprietor, he may, as a way to be excused in advance, request the proprietor’s
permission to go to court or, if the proprietor is unable or unwilling
to give his permission, request for a substitute authorisation of the
Subdistrict Court.
Article 1:444 Liability of the legal administrator
The legal administrator is liable towards the proprietor if he has failed
to take care of the proprietor’s interests in a way as could be
expected of a prudent administrator, unless this failure is not attributable
to him.
Article 1:445 Rendering accounts
- 1. The legal administrator annually renders
account to the proprietor, unless other moments have been set for this
purpose; he also has to render account to the proprietor at the end of
the fiduciary administration; when he ends his administrative duties and
another legal administrator takes his place, he has to render account
as well to this successor. The accounts will be rendered before the Subdistrict
Court. The Minister of Security and Justice may establish a model according
to which the account rendered must be drawn up. The legal guardian meant
in Article 1:383, paragraph 7, shall submit annually the declarations
and report referred to in Article 1:388, paragraph 8. If asked for, the
legal guardian shall give an account of his activities to the Subdistrict
Court. The legal guardian is entitled to a remuneration in conformity
with the rules set for this purpose by the Minister of Security and Justice*.
- 2. If the proprietor is unable to appraise
the rendered accounts or if it is uncertain to which proprietor account
must be rendered, then the legal administrator renders account to the
Subdistrict Court. An approval of these accounts by the Subdistrict Court
does not affect the right of the proprietor to request the legal administrator
at the end of the fiduciary administration to render account again over
the same period, insofar this is not unreasonable.
- 3. The Subdistrict Court may – either
of its own motion or upon the request of the legal administrator –
release the legal administrator of his obligation to render account periodically
before the Subdistrict Court; the Subdistrict Court may also order that
accounts only have to be rendered every number of years.
- 4. The legal administrator meant in Article
1:435, paragraph 7, shall annually submit the declarations and report
referred to in Article 1:435, paragraph 8*.
- 5. Furthermore, the statutory provisions
of Subsections 1.14.6.10 and 1.14.6.11 of the Civil Code, with regard
to the process of rendering account for a guardianship that has been exercised
over a minor, shall apply accordingly to the accounts which have to be
rendered by a legal administrator pursuant to the present Article.
*) The text of the last three sentences of paragraph
1 and of paragraph 4 was accepted, but not yet in force on 14 February
2014.
Article 1:446 Periodical distribution of benefits
and the return of assets when final accounts are rendered
- 1. Insofar the Subdistrict Court has not
provided otherwise, the net benefits produced by the assets under fiduciary
administration, reduced with the remuneration payable to the legal administrator,
will be distributed to the proprietor each time when account is rendered.
Upon the request of the proprietor, the Subdistrict Court may set other
dates for making such distributions.
- 2. Immediately after the legal administrator
has rendered his final accounts for his administration, he hands over
all assets to the person who is entitled to administer those assets after
him. The legal administrator, however, may withhold the assets until he
has received full payment of what is due to him.
- 3. Where account is rendered directly to
the Subdistrict Court, the net benefits or the assets to be handed over
remain under fiduciary administration of the legal administrator until
the proprietor is able to receive them or, respectively, until it is no
longer uncertain to which proprietor they belong, unless the Subdistrict
Court has provided otherwise.
Article 1:446a After five years: report to the Subdistrict Court regarding
continuation
Each time after a period of five years, or so much sooner as the Subdistrict
Court has decided, the legal administrator shall report to the Subdistrict
Court about the development of the fiduciary administration. He especially
shall give his opinion in regard of the question whether the fiduciary
administration has to be continued or can be replaced by measures less
or more far-reaching. Facts of importance for the fiduciary administration
or the continuation thereof, shall be mentioned immediately by him to
the Subdistrict Court.
Article 1:447 Remuneration of the legal administrator
- 1. The legal administrator is entitled to
a remuneration in conformity with the rules set fort his purpose by the
Minister of Security and Justice.. On account of special circumstances
the Subdistrict Court may, for a fixed or indefinite period of time, provide
for a different remuneration than the one set in the fiduciary administration
order or than the one set by law.
- 2. Where there are two or more legal administrators,
the remuneration to which they are jointly entitled, shall be divided
between them in proportion to the significance of the work performed by
each of them.
Article 1:448 End of the duties of the legal administrator
- 1. The duties of the legal administrator
shall end:
a. when the fiduciary administration ends;
b. in the event that the legal administrator
was appointed for a fixed term: on expiry of that period;
c. when the legal administrator dies, gets
bankrupt, falls under the Debt Repayment Scheme for Natural Persons or
is placed under adult guardianship;
d. when one or more of the legal administrator’s
own assets are placed under fiduciary administration in the sense of the
present Title;
e. when the Subdistrict Court has discharged
him as legal administrator as from a day to be set for this purpose by
the court.
- 2. A discharge shall be granted to him, either
upon his own request, either for compelling reasons or because he no longer
meets the requirements to become a legal administrator, this upon request
of a co-legal administrator or of the person entitled to request for a
fiduciary administration as meant in Article 1:432, paragraph 1 and 2,
or of its own motion. Pending the investigation, the Subdistrict Court
may grant a provisional measure within the fiduciary administration and
suspend the legal administrator. If necessary, the Subdistrict Court may
do so without having heard the legal administrator in advance. In that
case, the court order will lose its force after two weeks, unless the
legal administrator has been given the opportunity during that period
to be heard.
- 3. A former legal administrator must keep
doing all the things that cannot be postponed without causing damage to
the proprietor until the person who will succeed him in the administration
has accepted to administer the involved assets. In the situations mentioned
in paragraph 1 under point (c) this obligation shall be incumbent on his
heirs, respectively, the liquidator in his bankruptcy or the administrator
in the Debt Repayment Scheme for Natural Persons, provided that they have
knowledge of the existence of the fiduciary administration; in the situation
mentioned in paragraph 1 under point (d) the previous sentence applies
to the legal administrator charged with the fiduciary administration meant
in that paragraph.
- 4. Article 1:384 applies accordingly.
- 5. In case of a discharge for compelling
reasons or because the legal administrator no longer meets the requirements
for becoming a legal administrator, the Subdistrict Court may order that
no accounts have to be rendered any longer. The Subdistrict Court may
also seize (arrest) the books, documents and data carriers of the legal
administrator and all assets belonging to the proprietor. For this purpose,
it may enter any place.
Article 1:449 End of the fiduciary administration
- 1. A fiduciary administration ends on the
expiry of the period for which it was established or when the proprietor
dies or is placed under adult guardianship.
- 2. The Subdistrict Court may, if a fiduciary
administration is no longer necessary or a continuation thereof has proved
to be not sensible, abolish that fiduciary administration, this upon the
request of the legal administrator or of the person entitled to request
for a fiduciary administration as meant in Article 1:432, paragraph 1
and 2, or of its own motion. The court order shall enter into force as
soon as it has become final and binding, unless it designates an earlier
point in time.
- 3. The persons entitled to request for a
fiduciary administration as meant in Article 1:432, paragraph 1 and 2,
and the legal administrator may request for a prolongation of a fiduciary
administration established for a specific period of time. The Subdistrict
Court shall decide within two months after the petition (request) was
lodged. Article 1:384 applies accordingly. No legal remedy is available
against a denial of a request for a prolongation.
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