Dutch Civil Code

Book 1 Law of Persons and Family Law

Title 1.20 Protective mentorship for adults

Article 1:450 Grounds for a protective mentorship
- 1. If an adult due to his physical or mental condition is temporarily or permanently unable or hindered to look after his own non-financial interests, the Subdistrict Court may order a protective mentorship on his behalf.
- 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 protective mentorship order may be given already prior to the moment on which the minor reaches adulthood.
- 3. A protective mentorship may be ordered also if it is to be expected that an adult within a foreseeable period will get in a situation 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 order a protective mentorship on behalf of the involved adult.

Article 1:451 Persons entitled to file a request for the establishment of a protective mentorship
- 1. A protective mentorship order on behalf of an adult may be requested by the adult 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 person involved, his legal guardian exercising guardianship over him as a minor, his guardian exercising guardianship over him as an adult or his legal administrator as meant in Title 19 of Book 1 of the Civil Code. In the situation referred to in Article 1:450 paragraph 3 a request for a protective mentorship order may be filed only by the involved adult himself.
- 2. Except in the event referred to in Article 1:450, paragraph 3, a protective mentorship can be requested for also by the Public Prosecution and by an institution where the person involved is looked after or that offers guidance to the person involved. In the last situation, the application must in addition mention why the persons referred to in paragraph 1 – with exclusion of the adult’s blood relatives in the direct line or in the collateral line up to and including the fourth degree – have not filed a request for a protective mentorship order themselves.
- 3. The court where a request for an 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 protective mentorship as meant in the present Title.
- 4. A request to convert an adult guardianship into a protective mentorship on behalf of the adult who is placed under adult guardianship, must be filed at the court with jurisdiction to decide on the ending of that adult guardianship. This court may of its own motion, when ending the adult’s guardianship, proceed to ordering a protective mentorship as meant in the present Title.
- 5. An ordered protective mentorship shall take effect one day after the relevant 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 1:450 paragraph 2 the protective mentorship shall take effect at the moment on which the involved minor reaches the age of legal majority.

Article 1:452 Appointment of a legal mentor
- 1. The court that orders a protective mentorship appoints at the same time or as soon thereafter a legal mentor. The court shall ascertain if the to be appointed person is prepared to exercise the right of protective mentorship.
- 2. If necessary, an interim mentor will be appointed.
- 3. When appointing a legal mentor the court shall follow the explicit preferences of the involved adult, unless there are profound reasons to object to the appointment proposed by him.
- 4. If the involved adult 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 mentor, unless paragraph 3 has been applied. If the preceding sentence is not applicable, then preferably one of his parents, children, brothers or sisters is to be appointed as legal mentor. When the involved adult later 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 be appointed as legal mentor in replacement of the earlier appointed legal mentor.
- 5. A legal person with full legal capacity is eligible to be appointed as legal mentor.
- 6. The following persons cannot be appointed as legal mentor:
a. persons without legal capacity (minors and adults under adult guardianship);
b. persons on whose behalf a protective mentorship has been established;
c. an immediately involved or attending relief or care worker;
d. persons forming a part of the management or personnel of the institution where the person involved is looked after or that offers guidance to the person involved;
e. persons tied to the institution where the person involved 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 mentor, legal administrator or legal guardian of an adult, 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 mentor, 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, with 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. Where the person shows that he has already submitted the declaration meant in paragraph 7, under (c), to a court in the 24 months prior to his appointment, he is exempted from submitting that declaration.
- 9*. The court may appoint two mentors, unless valid reasons oppose to such appointment. When there are two mentors, each of them may solely perform the tasks which belong to a legal mentor. If necessary, the court may establish a division of duties between the mentors. In the event of a difference in opinion between the mentors, the Subdistrict Court shall decide upon a request of one of them or of an institution referred to in Article 1:451, paragraph 2. This court may also determine the division of the remuneration.
- 10. The duties of the legal mentor shall take effect one day after the court order of his appointment has been handed over or sent out to him, unless the court order specifies a later date for this purpose.

*) The text of these paragraphs was already accepted, but not yet in force on 14 February 2014.

Article 1:453 Legal incapacity of the adult under mentorship to perform specific juridical acts
- 1. During the existence of the protective mentorship the involved adult has no legal capacity to perform juridical acts in matters concerning his care, nursing, treatment and the provision of assistance and support, unless the law or a treaty implicates otherwise.
- 2. With regard to juridical acts as referred to in paragraph 1 the legal mentor shall represent the involved adult in and out of court, unless such a representation is excluded by law or treaty. The legal mentor may authorise the involved adult to perform these juridical acts himself.
- 3. With regard to other actions than juridical acts on matters as referred to in paragraph 1, the legal mentor shall act for and instead of the involved adult as far as the nature of the involved action allows him to do so.
- 4. The legal mentor shall advise the involved adult over matters of non-financial nature and watches over his interests in this respect.
- 5. Where the involved adult opposes against the performance of an action with serious impact in matters as referred to in paragraph 2 or 3, such an action may only be carried through if this is evidently necessary in order to prevent a disadvantage for the involved adult.

Article 1:453a Incapability to exercise parental authority
- 1. If the court considers this to be necessary, it may decide as well that Article 1:246 shall apply accordingly.
- 2. During the existence of the protective mentorship the court may take a decision as meant in paragraph 1, either upon the request of a person as referred to in Article 1:451 paragraph 1 or 2 or upon the request of the legal mentor or the Public Prosecution Service or of its own motion.

Article 1:454 Duties and liability of the legal mentor
- 1. The legal mentor has to involve the adult on whose behalf the protective mentorship has been ordered as much as possible in the performance of his duties. The legal mentor shall encourage the involved adult to perform juridical acts and other actions himself if the adult, in this respect, may be regarded to be capable of making a reasonable evaluation of his interests. The legal mentor must act with the prudence of a good mentor.
- 2. The legal mentor is liable towards the involved adult if he has failed to take care of the adult’s interests in a way as could be expected of a prudent mentor, unless this failure is not attributable to him.

Article 1:455 Liability of the involved adult for debts incurred in his name by the legal mentor
Without prejudice to the provisions of Article 6:172, the adult on whose behalf a protective mentorship has been ordered is liable for all obligations arising from juridical acts which the legal mentor in his function has performed in the name of the adult.

Article 1:456 Authorisation to start legal proceedings
Before the legal mentor starts any legal actions on behalf of the involved adult, he may, as a way to be excused in advance, request the adult’s permission to go to court or, if the adult is unable or unwilling to give his permission, request for a substitute authorisation of the Subdistrict Court.

Article 1:457 Nullification of voidable juridical acts
- 1. A juridical act performed in defiance with Article 1:453 is voidable in the way as provided for in paragraph 2 and 3.
- 2. Where such a juridical act was performed by or addressed to the involved adult, the ground of voidability may only be invoked against a counterparty who was aware or ought to have been aware of the existence of the protective mentorship; towards this counterparty the involved adult is presumed not to have had the legal capacity to act.
- 3. Where such a juridical act was performed by or addressed to the legal mentor, the ground of voidability may only be invoked against a counterparty who was aware or ought to have been aware of the fact that the legal mentor had no authority to act this way.

Article 1:458 Fiduciary administration and protective mentorship at the same time
As far as one or more assets of the involved adult are placed under fiduciary administration in the meaning of Title 19 of Book 1 of the Civil Code, the legal administrator, if he is not also the legal mentor, has no authority to act with respect to matters as referred to in Article 1:453 paragraph 1.

Article 1:459 Report to the Subdistrict Court
- 1. When requested, the legal mentor has to report his conduct to the Subdistrict Court. The Subdistrict Court may at all times call the legal mentor to court to be heard and questioned. The legal mentor is obliged to provide all the required information to the Subdistrict Court.
- 2. Every year the legal mentor meant in Article 1:452, paragraph 7, shall submit the declaration and report referred to in Article 1:452, paragraph 8, under (a) and (b). Every two years, the legal mentor shall submit the declaration referred to in Article 1:452, paragraph 8, under (c). The Subdistrict Court may assess for different parts of the report another point of time for its submission.
- 3. Each time after a period of five years, or so much sooner as the Subdistrict Court has decided, the legal mentor shall report to the Subdistrict Court about the development of the protective mentorship. He especially shall give his opinion in regard of the question whether the protective mentorship has to be continued or can be replaced by measures less or more far-reaching. Facts of importance for the protective mentorship or the continuation thereof, shall be mentioned immediately by him to the Subdistrict Court.
- 4. At the end of his protective mentorship, the legal mentor must report his conduct in writing to his successor, to the Subdistrict Court and to the involved adult under protective mentorship, if the protective mentorship has ended because the period for which it was ordered has expired or because it has been terminated by court order.

Article 1:460 Compensation for costs and remuneration for the legal mentor
- 1. The legal mentor is allowed to charge the adult under protective mentorship for the costs necessarily made in the performance of the mentorship.
- 2. The legal mentor is entitled to a remuneration in conformity with the rules set for this purpose by the Minister of Security and Justice.

Article 1:461 End of the duties of the legal mentor
- 1. The duties of the legal mentor shall end:
a. when the protective mentorship ends;
b. in the event that the legal mentor was appointed for a fixed term: on expiry of that period;
c. when the legal mentor dies;
d. when the legal mentor is placed under adult guardianship or when a protective mentorship has been ordered on his behalf;
e. when the Subdistrict Court has discharged him as legal mentor 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 mentor, this upon request of a legal co-mentor or of the person entitled to request for a protective mentorship as meant in Article 1:451, paragraph 1 and 2, or of its own motion. Pending the investigation, the Subdistrict Court may grant a provisional measure within the protective mentorship and suspend the legal mentor. If necessary, the Subdistrict Court may do so without having heard the legal mentor in advance. In that case, the court order will lose its force after two weeks, unless the legal mentor has been given the opportunity during that period to be heard.
- 3. A former legal mentor must keep doing all the things that cannot be postponed without causing damage to the adult under protective mentorship until another person has succeeded him with authority in matters as referred to in Article 1:453 paragraph 1. In the situation mentioned in paragraph 1 under point (d) this obligation shall be incumbent on the legal mentor’s liquidator or legal mentor, provided that they have knowledge of the existence of the protective mentorship of the involved adult.
- 4. Article 1:384 applies accordingly.

Article 1:462 End of the protective mentorship
- 1. A protective mentorship ends on the expiry of the period for which it was established or when the involved adult dies or is placed under adult guardianship.
- 2. The Subdistrict Court may, if a protective mentorship is no longer necessary or a continuation thereof has appeared to be not sensible, abolish that protective mentorship, this upon the request of the legal mentor or of the person entitled to request for a protective mentorship as meant in Article 1:451, 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 protective mentorship as meant in Article 1:451, paragraph 1 and 2, and the legal mentor may request for a prolongation of a protective mentorship 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.