Proposition 53K1009

Projet de loi réformant les régimes d'incapacité et instaurant un nouveau statut de protection conforme à la dignité humaine.

General information ¶

Authors

CD&V Sonja Becq, Nahima Lanjri, Raf Terwingen, Stefaan Vercamer
Ecolo Muriel Gerkens
LE Catherine Fonck
MR Marie-Christine Marghem
N-VA Sarah Smeyers
Open Vld Sabien Lahaye-Battheu
PS | SP Valérie Déom

Submission date

Jan. 11, 2011

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil law civil procedure ownership age of majority infancy mentally disabled person legal capacity guardianship

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP ∉ Open Vld N-VA LDD MR VB

Contact form ¶

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Discussion ¶

July 19, 2012 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Terwingen and other colleagues including Ms. Gerkens on the reform of the disability regime and aimed at establishing a new status of protection more consistent with human dignity. These texts follow a first proposal from our former colleague Luc Goutry. After numerous hearings and after the State Council’s opinion, a single text came into being given the excellent atmosphere that presided over all the committee’s work on this subject.

Disability refers to any person who, due to his or her health condition, is totally or partially, temporarily or permanently, unable to properly defend his or her interests, whether they are of a patrimonial or non-monetary nature.

In the text submitted to you, the protection measure is now only possible if it is absolutely indispensable and required. The magistrate will be asked – and you will see that an important place is given to the peacekeeper – to do a work “on-measure”, adapted to the case by case, which thus takes into account the situation of the person to be protected but also the principle of proportionality.

In the new provisions, the peacekeeper becomes the only competent magistrat, whereas today, the powers are distributed between the peacekeeper and the court of first instance. The Peace Judge thus becomes the central magistrate in the problem of disability; he must fully play his role as a nearby magistrate.

The second will of the proposal authors is to group hybrid disability schemes into a single scheme established on the basis of the provisional administration.

Third postulate: the basic principle is capacity, not more incapacity. The whole philosophy of the project is based on this principle: any person is capable, except in cases where, or for very specific acts, he is deemed incapable by the peace judge.

Fourth postulate: it provides for the possibility of appointing a person’s administrator, a property administrator and, above all, revaluing the trusted person.

Fifth element: a system of assistance and representation of the person is established.

Finally, the sixth postulate of the legislation, it is to value the autonomy of the person, to the extent possible, whenever a available space exists in order to maintain this capacity.

The law provides for different regimes depending on the acts on which the peace judge will have to decide. They will be seven, but I will not detail them, because we will find them in the legislation. A distinction is made between the nature of the very personal legal act and the legal effects resulting from it. For example, there is a difference between the consequences of a marriage or divorce and the decision to refuse consent to recognition. The peace judge must adapt his decision to the elements of the file of the person to be protected.

We innovate legally by introducing an extrajudicial protection scheme. Currently, our law ignores this type of regime. Mandate and business management are now applied to solve practical problems in terms of day-to-day and wealth management. This new protection is a clear and simple system, based on the good faith of the representative and the trust placed in him. Here are a few strength lines of this regime. These are acts of representation relating to the property of the person concerned, but which do not relate to personal acts. We want to leave as much autonomy as possible, involve the family environment whenever possible and respect third parties in good faith.

Alongside this system of extrajudicial protection, we are changing and reforming the system of judicial protection. It is now based on the principle, consistent with the United Nations Convention, of the capacity to pass patrimonial and non- patrimonial acts. The peace judge must expressly indicate in his order which acts the protected person is unable to conclude. In the absence of specifications, it is still able to do so.

This new regime thus fundamentally deviates, on the patrimonial level, from the provisional administration in force. The Peace Judge shall assess the ability to submit personal or patrimonial acts in separate parts of his order.

For the first, it shall take into account the special circumstances and the health status of the person to be protected. For the latter, the peace judge will take into account the personal circumstances, the nature and composition of the property to be managed, as well as the health status of the person.

In this perspective, the text we will adopt lists the very important acts on the personal level and on the patrimonial level; it is a sort of check-list that will be at the disposal of the magistrate, which will allow him a serious approach and assessment of each act and to nuance his decision according to the importance of those acts and the status of the person to protect.

It has also been ensured that, on the level of the procedure, the medical certificate is better framed and more circumstantiated.

We then introduce the schemes that may be assigned by the judge: schemes of assistance or representation either for the management of the property, for the management of the person, or for the management of the property and the person.

The text that is subject to our approval also rewrites the rules of procedure. I will not list them, except for two which seem important to me: first, the seizure of the officine is possible in particular circumstances; second, the principle of the closed door, which does not exclude persons from the surroundings of the person to be protected who can be heard, and this in order to allow the peace judge to take a circumstantiated order.

The texts to be adopted will define and regulate the functioning of the administration.

First Principle: Overall, when an administrator is appointed, the person to be protected may at some point have made a prior choice; if it is considered to be correct and put in good conditions, the peace judge will approve this choice.

Second principle: it will be appropriate to ask the cantonal magistrate to preferably choose a person from the surroundings in such a way that the appointment of a professional as an administrator will become the exception, whereas today it is practically the opposite.

Finally, the Peace Judge will preferably appoint the person’s administrator as the property administrator if he is in a situation where the two cases coexist, i.e. the management of the person and the management of the property.

Generally speaking, we also aim to designate only one administrator of the person, except in the event that it is the parents of the person to be protected who would be designated.

The legislation provides for and defines the rules of assistance. Today, assistance is subject to a common law regime, unless the peace judge decided to deviate from it; our text provides a legal framework for assistance.

Similarly, it provides for the definition and very precise rules with regard to representation. Finally, a place is left to the administration exercised by the parents of the person to be protected. One of the key objectives of the authors of the proposal was to find a balance between respecting the autonomy of the protected person and the finding that it is necessary to make, to the fullest extent possible, confidence to his parents in helping him.

The last element I would like to emphasize is the appreciation of the role of the trust person, who appears as a real legal figure in our construction. Its mission will be to support the person to protect, to be the interface between that person and its administrator. It is an intermediary, which is also responsible for the supervision of the administration, to express the wishes of the protected person and to assist the protected person in expressing his opinion when, for example, in acts that remain personal to him, it is considered that he still has the capacity to fulfill them.

These are the essential elements that constitute the foundations of this legislation. My colleague Van Hecke will tell you about the discussions that took place within our committee.

I would like to thank my colleague for the first part of the report.

The discussions have taken a long time. In total, 16 meetings of the Justice Committee took place from February 2011 to July 2012. The committee has been working on this for almost two years in certain periods quite intensely.

I will try to briefly explain the views of the committee members. There were a lot of discussions during those 16 meetings.

During the discussion, Ms. Muriel Gerkens noted that the scope of the proposed reforms is not always correctly perceived by the general public. It should be emphasized that the applicants intend to give preference to the autonomy of the person as long as possible. A judicial protection arrangement may only be ordered if the situation of the person concerned leaves the peacekeeper no choice but to appoint for him an administrator.

Ms. Sabien Lahaye-Battheu outlined a number of key guidelines for her party contained in the text, namely the extension of the management of the property of the protected person to the protection of the person itself, the distinction made between extrajudicial protection, on the one hand, and judicial protection, on the other, and the full jurisdiction in matters of the peace judge.

It is important that the present scheme is clear, understandable, operable, enforceable and affordable.

Ms. Déom emphasized the importance of the work carried out during the previous parliamentary period and in the last months to eventually bring about the reform of the disability statutes. This reform has been very welcomed by the actors in the field and by the associations active in the disability sector.

For her, the proposed text constitutes a reversal of what has been accepted on the subject so far. A person is no longer incompetent, but, on the contrary, is capable of performing certain acts. This reversal of perspective is motivated by the aim of ensuring respect for human dignity.

Mr. Brotcorne pointed out that the revision of the disability statutes is the result of a thorough and serious preparation. In the draft law and its amendments, priority is given to extrajudicial protection. It is true that at present it is already possible to resort to out-of-court solutions, but since such arrangements are not supported by law, they are not seldom accompanied by abuses and a lack of transparency. This will no longer be the case in the future.

He also noted that the proposed new judicial protection schemes will allow the peace judge to have instruments to make a decision tailored to the needs of the persons concerned.

Ms. Marie-Christine Marghem stressed that the bill supports a presumption of competence in the name of the person to be protected, as well as that it gives priority to a series of interventions in which the judicial authorities are assigned only a subordinate role. Furthermore, it will be necessary to pay attention to the effects of this bill on the workload of peacekeepers, which will also be affected by the future establishment of a family court.

Mrs Sarah Smeyers praised those who contributed to this impressive legislative initiative. The present text is therefore largely supported by many across party boundaries. It also emphasized that the final list of highly personal legal acts that are not subject to assistance or representation by the administrator is balanced. According to the speaker, this no longer needs to be changed.

Finally, the Minister’s representative praised the reform underway that fits into the broader framework of Belgium’s compliance with international obligations. The bill provides a major turnaround, as it assumes competence as the rule: incompetence becomes the exception. This legislative initiative demonstrates the effort to make the decisions taken as close as possible to the needs and needs of the person to be protected.

Colleagues, during the procedure for drafting this bill, hearings were also held in February, March and April 2011, in which 14 persons were heard. Those hearings inspired further improvement and amendment. The bill contains a total of 210 articles. A total of 392 amendments were submitted and discussed. Some were withdrawn. I will not discuss the amendments here; you can read this in the report.

I would like to point out two essential adjustments. First, the adjustment of the title. They always worked under a title that was still delicate. It was unanimously decided to change the title of the bill into a bill reforming the regimes on incompetence and establishing a new protection status consistent with human dignity. A title often says a lot about how one looks at a problem. This was unanimously approved. During the discussion, another important amendment was introduced, in fact several amendments aimed at reintroducing the office-only adjudication of the peace judge. That was a rather essential matter.

Colleagues, the bill was finally unanimously approved by the Justice Committee, which shows that it could count on a large unanimity.

So far, Mr. Speaker, colleagues and colleagues, the report.

I am pleased that we can finally approve this bill today. It was a work of long breath. The original applicant, who, unfortunately, is no longer in the federal Parliament, was Mr. Goutry. He was one of the tractors and initiators from the majority. It is, by the way, a proposal that was submitted during the cartel period of CD&V and N-VA.

I would also like to thank Mr. Terwingen, as the chief contender of this bill, for continuing that good cartel practice until long after the end of that cartel. That is also the reason why the N-VA is still co-applicant of this bill.

My group has continued to cooperate constructively with the opposition. We have achieved a good result across party boundaries. This result is supported by all political families, but also by the associations on the field and the magistracy. We believe that there is therefore a just, comprehensive and modern legislation.

This is an example of a functioning parliamentary democracy. Just like last year, when we were in a period of ongoing affairs, Members of Parliament worked together to deliver good legislative work. This is an example.

In concrete terms, this bill introduces a modern, transparent and efficient system. There will be only one global protection status for volunteer adults, both extrajudicial and judicial. Despite a multitude of statutes concerning involuntary or actlessness, the powers will no longer be distributed among different judges, as is now the case, but will all be grouped with the peace judge. In this area, there is a ‘simple’ and transparent legislation.

This not only benefits the prosecutor, but also provides efficiency. That must be the goal of the new legislation.

Mr. Terwingen and all the other applicants, when the discussion of the proposal was almost completed, there were still important amendments made to the proposal through amendments. With an amendment of Open Vld, I think of Mrs. Lahaye-Battheu, it was returned to the original text in the proposal, thus bringing the ex officio adjering of the peace judge again into the proposal. According to our group, this is a good thing. In any case, it will benefit the protection of the disabled persons.

At the request of the N-VA and the Order of Flemish Balies, it was also stipulated that lawyers who are temporary administrators should not accept legates from the willing persons they represent, of course with the exception of close relatives. This rule has been implemented in analogy to the rule for other people in a trust relationship.

It is clear that it is a good thing. As Chairman of the Committee on Justice, I would like to thank all colleagues who have spent so much time on this. Mr Van Hecke predicted to me in the report that we spent 16 meetings on this subject. We have worked on this in a very constructive atmosphere.

Our group will again from the opposition constructively, as always, support this proposal.

Mr. Speaker, dear colleagues, I will try to avoid repeating the words that have already been said, but it will be difficult, as my intervention turns out to be more extensive.

The bill that is under our review today is the result of a long work, which has been equally constructive on the part of all. Since 2010, this issue has been concerned by our assembly and the text that we have adopted in committee has been repeatedly referred to the profession. In the original text of Mr. Goutry or on the proposal of Mr. Raf Terwingen and all of our colleagues, we have all carried out a serious reflection, through numerous hearings and a very circumstantiated opinion of the State Council. The text therefore takes into account both the opinions of field associations and legal professionals and legal professions.

First of all, I would like to emphasize the general philosophy that we wanted to instill in this reform. The finding made at the outset is that of the impotence in the face of certain situations of persons to be protected, for which the existing texts offer an inappropriate or insufficient response: either, one can only protect property by resorting to provisional administration at the expense of the protection of the person, or one protects the whole of the rights of that person (patrimonial and personal), but one must resort to statutes whose scope is limited, such as the prolonged minority, or whose procedure is costly or complicated, such as judicial prohibition, and which, above all, carries a low-value image of the protected person or to be protected.

In response to this double finding, our intention was to incorporate the legal protection of legally incapable persons into an approach consistent with international instruments and in particular the Recommendation R.99.4 of the Committee of Ministers of the Council of Europe on the legal principles relating to the legal protection of incapable adults and the United Nations Convention of 13 December 2006 on the rights of persons with disabilities, recently ratified by Belgium.

Today, the law must recognize that the person with dysfunction is a full actor in society and must enjoy, in an equal way, all the rights and obligations that this implies. This concept implies that the law must support and stimulate the social integration and participation of the person with disabilities, as well as its development, the development of its independence and its fulfillment.

In this context, the legislator faces new challenges. The first response to be given—this is the ambition of the text we carry today—was to place the person to be protected at the center of the entire protection system. All protection must be based on the capacity and capabilities of the person. Contrary to current reasoning, the postulate of full capacity can only be reduced if the protection of the person against its weaknesses – and even its proven weaknesses – so demands. Protection of a person makes sense and is effective only to the extent that it intends to respond to the abuse or negative consequences that his state of disorder may engender and which concerns, rightly, the person himself and his surroundings.

This approach requires a complete change of mindset, a revolution, and relies on a peace judge who is responsible for providing special and tailor-made care to each case and its evolution. Respect for autonomy, i.e. the choices and desires of the person with these disorders, must constitute a starting postulate. The protected person must play the most important role possible in the construction of his own protection and the protection offered must comply with the principle of necessity and subsidiarity. This is what the bill provides when it allows that person to anticipate the occurrence of dysfunction by elaborating himself his future protection on the extrajudicial level, based, in the case of property, on the figure of the mandate. Even if the person who assigns this mandate becomes incapable of controlling the acts of his representative, the verification of the peacekeeper replaces this capacity in order to allow the solution desired by the person himself to continue to produce its effects.

In the same perspective, it is also provided that the person to be protected may, when it still has the capacity to do so, designate himself the person or persons he or she wishes to see become administrator(s) of his property or of his person.

Finally, in general, in the search for the most appropriate protection, every decision and measure must take into account the wishes and preferences expressed by the protected person. The latter must be able, depending on the severity of its condition, to participate in the decision-making process relating to all matters which concern it.

The personalized approach constitutes an essential guarantee of respect for the principles of autonomy, necessity and subsidiarity, on which one cannot insist too much. As mentioned by Mr. Brotcorne, the legislator establishes a list of highly personal acts – acts that cannot be delegated, nor performed with the assistance of third parties – which also testifies to the fact that the protected person is at the heart of the proposed reform. These are acts that require a personal choice such as marriage, divorce, acts relating to filiation or sterilization.

For each of these acts, a specific regime is provided.

I immediately address the problem raised by the Family Court. I skip a few chapters of my speech, which have already been duly evoked by the colleagues, so as not to tire the audience on this last day of session.

Even if, for a long time, the peacekeeper has taken on the role of nearby magistrate and is therefore accustomed to it, it is obvious that the new tasks that we entrust to him will increase his workload. I therefore take this opportunity to insist on the parallel that should be made – and which underlies our work – between this case and the advent of the family court. These two reforms have been carried out in front of the Justice Committee for a long time. The second, therefore the family court, involves redistributing current powers of peacekeepers to the long-awaited new family courts. The relationship of communication vessels between the two texts has therefore always been present in our minds. If this withdrawal of competence does not take place, there is concern that the new prerogatives that we confer on the nearby magistrate cannot be fully endorsed by him, given the workload. This would jeopardize not only our reform, but also the one we have already voted for and which concerns the family court.

I will say a word about the importance of other actors in the protection of the incapable person. I thus think of the administrator, for whom all existing guarantees in the current provisional administration procedure have been transposed and adapted. It is also necessary to pinch the parents: if they consider it appropriate to participate and if the peace judge endorses this choice, they can obviously be appointed as administrators of the person. But, in an interest in respecting its autonomy, it is clearly indicated that they then assume a completely different role and that there is no longer a question of parental authority exercised over a major, but rather of representation or assistance, as in the case of non-parental administrators. This provision is very important, because it avoids infantilizing the major declared incapable, who are physically major, but who unfortunately are not legally.

Parents should take distance to give their child the greatest opportunity to become independent.

This reform is more social, more economic and simpler. It has only one way of entry. It is more social, because the life of the person to be protected is the foundation of any measure. By privileging the choice made by the person himself as to his administrator or a possible extrajudicial representative, by allowing relatives, or even parents, to be designated as administrators or trusted persons, the proposed reform avoids the unnecessary professionalization of the protection of the disabled major and also simplifies things on the human and economic level.

Dear colleagues, I pass many paragraphs and make a spontaneous synthesis here.

In conclusion, we can qualify this reform as a velvet revolution; on the one hand, because the will of the amendments made is to have vocation to embrace the whole matter of legal incapacities by a single judicial way, as I said at the beginning of my conclusion, and, on the other hand, because, unlike some outright mediated reforms, it has been reflected and carried out in the greatest seriousness, low noise, in calm and concertation. This does not diminish its importance. On the contrary! That is why we will support it.

I remember my first appointment as interim governor. I was a young lawyer and the person to be protected was a young woman with delusions, who had hidden her money, then Belgian franc, everywhere in the walls. In the meantime, the woman is happily healed and has the control of her property again. So it was a positive story.

I was pipe-pong, but the law was that too. The law on the provisional rule dates from 1991, a good twenty years ago. In 2003, after ten years, there was an evaluation and the law was improved.

One of the improvements was that as an administrator, one must now not only prepare a report on the financial level, but also a report on the material living conditions of the protected person, in which one must indicate the personal contacts of the past year and also a word of explanation about the living conditions.

Now we are in 2012 and we cannot talk about an improvement or an evaluation, but we must talk about a reform or a big leap forward, as we have been able to read in the blog of honorary judge Jan Nolf, who follows the theme very closely.

Indeed, there has been years of work on the great leap forward, first under the leadership of Luc Goutry and then of Raf Terwingen, together with the N-VA, by the staff of our various study services. I want to name them explicitly here, very special Tim.

What were the pain points? Why did we have to carry out such a reform? I want to list a sixth. First, there is the fragmentation of legal protection in different statutes. The jurisdiction is also spread across various courts.

In the second place there is the fact – I use the words of Luc Goutry – that those who were declared minors for an extended period are often overprotected. He or she can no longer do anything and is no longer competent for nothing, while those under provisional rule are often underprotected. He or she is then only protected with regard to his or her property. However, there are also often problems with personal decisions and we do not catch them today.

Third, today there are problems with the medical certificate. Often, medical certificates are very summary and the peace judges with those certificates do not get sufficient information.

There are also problems because there is too little personal contact between the peace judge and the protected persons. Today, there is a contact at the beginning of the administration, often no longer.

For the peace judge, the appointment of the governor is often a difficult balance exercise. Who should be nominated? Is a family member or a professional administrator, often a lawyer, appointed, or is a replacement peace judge appointed as administrator?

The last pain point is the remuneration of the professional managers. Often there is no line. Each peacekeeper seems to have its own tariffs.

These pain points had to be addressed. We have begun this great work. We held hearings, we consulted experts, we held many working meetings. A first large pack of amendments was submitted last summer. An opinion from the State Council has been received. Afterwards, a new set of amendments was submitted, just less than 400, and so we came to the final text, which today presents.

The starting point is, as already stated, the competence of everyone, unless it is established that a person is incompetent in certain points and that the person concerned needs tailor-made protection in those points.

The tailor-made protection is the major innovation in the text. It will be the biggest challenge in the field. I would like to quote again from the blog of the honorary judge that I mentioned earlier. He writes: “From now on, empathic peace judges will be needed everywhere. Protecting vulnerable fellow human beings is the competence that brings peacekeepers most painfully close to the citizen, from hospital bed to kitchen table, from intensive care to plush salons, to troubled families or isolated individuals. The unwritten task is then to be a concerned judge, a caring justice.”

He further writes: “Justice has slow judges, but also cold judges.” And he goes on with a recommendation: “It would be good for the Supreme Council of Justice to refine its selection in response to the substantial new assignments of the neighborhood judge.”

I quote that to show that the reform for the peacekeepers on the ground will bring a major change. Our peacekeepers, who often work very well today, will become much more empathic judges and much more will become the outpost of the caring Justice, because all the files of vulnerable people will be centralized with them.

We have chosen tailor-made protection, both in terms of extrajudicial and judicial protection. In the field of extrajudicial protection, we have expanded and innovated. Until now, there was no extrajudicial protection measure in our law. It was decided to go for the figure of the load. This has, among other things, the advantage that family members or other members of the social network can also act as a carrier. Another advantage is that a well-developed system of extrajudicial protection will reduce the workload of our peacekeepers.

Judicial protection may take various forms, such as assistance and representation, where the incapacity of the protected person is addressed by the intervention of the trustee. In addition, there is the enhanced possibility of appealing to a trusted person. We have exchanged opinions on this trust person in the last committee meetings. A number of amendments were also submitted. The conclusion is that the role of the trust person as such gets a facelift. On the one hand, there is the incentive to appoint the trust person and expand his role. On the other hand, the informal character is ⁇ not lost from the eye. Hence our amendment to not introduce an obligation for the peace judge to examine in each file whether a trust person is needed, but to rely on his or her ability to see clearly and, if necessary, to appoint a trust person.

Colleagues, we, as legislators, of course, can designate as many protection regimes as we want, they must also be implemented in practice. It is the peacekeepers who have jurisdiction over both out-of-court protection and judicial protection. Therefore, it is important that in the amendment we have also ⁇ ined the official adjudication. It was initially unclear whether the possibility of an office-only adjudication would remain. There was the opinion of the State Council and after the discussion and the amendment, we finally decided that the office-only adjustment remains. The amendment also provides for a procedure for cases of ex officio adjudication.

This text is not just a legislative amendment, but represents a reform with a large social impact for a, unfortunately, ever-increasing group of vulnerable people. The figures show that. In 2007, approximately 8 000 requests were submitted to appoint a custodian for persons to be protected. In 2011, 11 000 new applications for placing people under administration were already submitted. Every year, therefore, more than 10 000 new administrations begin to run for people who can no longer manage their property themselves.

It is a reform that, on the one hand, gives more freedom to those to be protected and that, on the other hand, also gives them more dignity.

Finally, I would like to emphasize that this law, which comes into force one year after its publication, becomes a challenge for the peacekeepers and the secretaries, for the family and professional administrators, for the trusts and for the protected persons. Last but not least, this will also be the case for the Minister, who has to issue a number of important KBs, including in terms of salary. The remuneration must be based on the same tariff.

It is therefore an important challenge for the Minister in terms of the KBs, as well as in terms of timing, as has already been said by Mrs Marghem. In fact, the text of the disability statutes coincides with the establishment of the family court. We are confident that this will go perfectly.

We will approve this text.

Mr. Speaker, dear colleagues, the work we have done for many years is a parliamentary work as I like them.

It all started in 2003 with Mr. Goutry and a bill on the provisional administration of property. At the time already, a dynamic of provisional administration of property is installed and no longer a financial tutelage.

In 2006, the United Nations Convention recognized the rights of persons with disabilities. From now on, we must defend a policy principle of inclusion and participation of persons with disabilities as citizens. A whole series of requirements arise from this, especially in terms of compliance. It becomes then impossible to continue talking about incapable, stupid – terms still in our legislation – and to place major in a status of minors. We adopted this United Nations Convention in 2008 or 2009 – I don’t remember very well.

In June or July 2008, Mr. Goutry re-defines a bill that establishes a global protection status for adult incapable persons. Then something happened that I still did not understand. The text of mr. Goutry, who was signed by all the majority parties, sacrificed, in some way, the incapacity. It had an effect contrary to the aim sought. The teachers who served as reference at the time ⁇ pursued different goals.

The associations of persons with disabilities and associations of persons with mental illnesses then alerted us to the fact that the House website was retrieving a bill that posed a problem. As Ecolo-Groen parliamentarians, and therefore part of the opposition, we said to ourselves that if the text had been signed by all members of the majority, it meant that there was an agreement on it and it would be voted.

We have therefore decided to draft a competing bill, actually inspired by the 2003 Act on Provisional Administration of Property and generalizing this principle to the administration or protection of vulnerable persons.

Then, we had the opportunity to organize numerous debates and meetings with these associations, with peace judges and with administrators. by Mr. Goutry participated in various debates; he admitted that the text he had submitted did not pursue the objectives he had set himself.

A collective work began in 2010. It is he who achieves today through a collective law proposal and a work of collective amendments. Thanks to all these amendments, we have rewritten a new proposal.

The result was really worth it. Together with my colleagues from Ecolo-Groen, I am satisfied and proud of the work done.

Satisfied and proud, because, throughout the whole process, we have been able to maintain a connection with the representatives of persons with disabilities and persons with mental health problems, parents, actors whether they are administrators, notaries, peace judges. This is what makes the wealth of our work: this interaction has never ceased. In every case, we confronted our texts with practice.

A major element of this proposal is that it is the person who is considered priority, with his abilities, with what he is, with his life plans, with his desires. Then, with her and her surroundings, her needs will be evaluated: where does she need help or accompaniment, should decisions be made in her place, should it be replaced for the whole of her acts?

This approach is completely different from the previous steps. Protection measures will be systematically adapted to the needs of the person and not to the identification of the person in a status of incapable or incompetent.

It will be worth repeating regularly the importance of taking into account a certain attitude of the people we will often be confronted with, especially those with minor disabilities or mental health problems.

These people are afraid that they will be granted official protection status and that they will be prevented from carrying out their life project. We will therefore have to explain to them that, according to the text, it is the person himself who will ensure the gestures, alone, with his family environment or with the accompanying services. A decision will only be made when the appointment of an administrator is necessary. I know that for all the authors of the proposal, things are clear, but we will have to repeat it continuously.

We have also introduced a provisional dimension in the administration of property and in the administration of the person. This is an important notion because it means that the situation is likely to stop or evolve. Thro ⁇ the procedure, there will therefore be regular evaluations – two years are provided for in the law – that will be done with the person, with his surroundings, with the person of trust.

Depending on the results of the evaluation, another decision may be made. It is this evaluative approach that will reassure parents who have a child suffering from a ⁇ serious disability and who will always remain in a state of total dependence. It will not be abandoned because the evaluation will demonstrate that the process must be repeated continuously. This assessment can also help reassure the person whose capabilities are still important and adapt to their needs.

As regards the trust person provided for in the 2003 Act on the Administration of Property, it is important that the person is not an administrator and does not necessarily have an affective connection – in fact, it is sometimes complicated to talk about a life project with a father, a mother, a brother, a sister – and to have a friend, a neighbor, who can fulfill this role of a person of trust.

So we really wanted to highlight this role and encourage the recourse to a trusted person for any person against whom protective measures would be considered. This trusted person will not only have the task of assisting in the expression but also a supervisory role with regard to the administrator, the peacemaker and the various stakeholders, so that the protection of the protected person is at the center of concern.

There is a new element on which the field actors have drawn our attention. I had omitted the fact that in 2005 or 2006, we had adopted private foundations, which are groups around a disabled person, usually relatives, friends. The social purpose of this association is to help the person in his life project, in the management of his property, etc. Thus, at the disappearance of parents, there will remain a group of people motivated and attentive to the needs of the person.

The few private foundations that exist have come to us arguing that equipped with such structures, they could fulfill the role of administrator of property and/or of the person, which we have incorporated in the bill. We did not accept, on the other hand, to incorporate the fact that a foundation as such plays the role of a trusted person. In fact, it is an interpersonal relationship; it is a person and not a legal person who can fulfill this role and function.

We have entrusted the entire device to the Peace Judge, due to its proximity, practice and knowledge. This means, as some have pointed out, that the other bill (which became a draft), which concerns the family court, must be implemented. All family matters must leave the field of action of the peace judges to be taken care of by the courts of first instance. I hope that this family court can really be established. Thus, peace judges will save time and be more available for those to protect, their families and their surroundings.

I talked about the most important thing, except for one important element. If all this work could be done finely and collectively, it is ⁇ because we worked well together and heard the outside actors, but also because the collaborators from all groups – under the guidance of Tim, who worked remarkably – helped us to write, structure and elaborate the spine of our amendments and all our texts. It is a great opportunity that we have had, and I would like to sincerely thank him on behalf of all my colleagues at Ecolo-Groen. (The applause)

They are still registered. Schoofs and Brotcorne, Mrs. Deom and Mr. and Terwingen. Can I ask speakers to be concise? Sometimes I feel like the whole debate that has been held in the committee for two years is being restarted.

It has been said a lot, and good wine does not need a crown. I would like to congratulate the applicants, and at the head colleague Terwingen, who has brought the work to a good end, the work that was initiated four legislatures ago by his group member, Mr. Goutry.

I am only a little worried about the fact that the number of peacekeepers will decrease in the coming years. They have a heavy task on their shoulders. On that level, a tooth will have to be struck, so that the law gets the full implementation it deserves.

I am speaking from the tribune because I would like the Minister of Justice to listen. I fully agree with everything that has been said. Several colleagues recalled that this is a second reform. This is a parliamentary initiative, as was the case for the family court. These two reforms are linked and it is absolutely necessary, Mrs. Minister of Justice, that we continue one and the other, that the date of entry into force is the same. This is the only way to work consistently. I remain therefore attentive and I will interpell you whenever necessary so that we can continue to move parallel to the family court.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. My colleagues did this very well before me, as did the rapporteurs, for whom I thank.

Nevertheless, I would like to rejoice, on behalf of my group, that today this reform on the global protection status of incompetent older persons, whose work had begun in the previous legislature, is finally voted. We have been working on this for several months, or even years.

This reform is obviously fundamental because it primarily responds to land demand and also allows Belgium to comply with its international obligations, in particular the 2006 Convention on the Rights of Persons with Disabilities. In fact, it was important to revise the philosophy of the law so that it best corresponds to this evolution of society. I would like to once again emphasize the importance of the work that has been done over the past years and months in order to lead to a comprehensive reform of the status of protected adult persons.

The text has been fundamentally revised since the last legislature, and the work – it is important to emphasize it again – has been carried out in collaboration with associations and organisations active in the disability sector, as well as with all political groups. And I would like to take the opportunity to thank Raf Terwingen and his collaborator, but also all the collaborators who have worked actively, in recent months, to present us the text that we will vote soon.

The main element of this text is the reversal of the philosophy that ruled the matter until now. From now on, a person will no longer be considered, a priori, as incapable. On the contrary, we start from the postulate – and this is fundamental – that the person is capable of doing things and list those that they are eventually unable to do. This reversal of the angle of approach is justified by the concern to guarantee respect for human dignity and to better respond to the will for autonomy expressed by people with disabilities, a claim, of course, well legitimate.

This proposal addresses the persons to be protected on a case-by-case basis, taking into account all its specificities. Persons shall be protected by law only if and only if protection is necessary for the safeguarding of their interests. In other words, the judge will have to apply the status of protection in a restrictive manner, the latter being an exception to a person’s legal capacity.

In fact, the whole text is based and articulated around this new angle of approach, of this new philosophy more consistent with the human dignity of the person with disabilities.

Reform is important; it has been said. Therefore, it will be necessary to insist that excellent information is provided to the field actors and the judicial world. This information must be correct and complete in terms of its content.

In addition, like Ms. Marghem and Mr. Brotcorne, I would also like to remind, since I see that Mrs. Minister of Justice is present, that this reform is closely linked to the establishment of the family court.

Competence transfers are organized between peacekeepers – to whom we give far more prerogatives – and the family court. We should therefore be vigilant about the impact of this proposal on the workload of peacekeepers, in the absence, unfortunately, of the application of the law on the family court.

I therefore insist once again on the need to establish these courts promptly.

Ladies and gentlemen, I will conclude. My group fully adheres, you will have understood, to the new philosophy proposed today and therefore supports the entire text.

Mr. Speaker, Mrs. Minister, colleagues, I stand here with the necessary pride but also with the necessary humility. The bill that is approved here today is in the hands of Mr. Luc Goutry and I have been allowed to continue. I have been mainly a moderator in a qualitatively very good meeting, which has been my role.

I am also scorned because it is really the work of this Parliament; it is not a bill of mine or of my group, it is of all of us. This is also evidenced by the presentations. I would like to thank you all for being able to accomplish this together. I have happened to be the first applicant, in succession to Mr. Goutry, but I can place my role in these, let that all be clear.

Colleagues, you know that I have always been very well documented in this dossier by Mr. Tim Wuyts. You also know that my presentations in the committee, thanks to the preparations of Tim Wuyts, have always been very extensive. I would like to apologize to Mr. Wuyts for not following the reasoning he had prepared for me today, for that would take us too far.

However, I would like to see expressly acting in the report that Mr. Wuyts apologises to me for not making his full presentation here, for the simple reason that you all have already cited the points that I wanted to point out myself, colleagues.

I will use his text for a moment to ⁇ forget no one I want to thank. There are the many civil society organizations, which have passed over the years; I will not list them, taking the risk of forgetting someone. There are the official advisory bodies, nor will I list them. The legal world has passed, as you all know, with hearings.

In the political world, I would like to express my thanks to the Chairman of the Committee on Justice. Mrs Sarah Smeyers has handled this case very correctly and with all openness of mind and has also given all possible opportunities to handle this case. I would like to expressly thank her for her support.

Of course, I also want to thank all the services of the Chamber. The secretaries of the committee have done very good work, with summaries, in order to be able to keep the overview, because it was still a large work.

Again and to conclude, I would like to thank Tim Wuyts for the work he has done. He is allowed to put this plum on his academic hat. He helped us very much in making good texts, along with all the other employees with whom he sat together almost weekly in preparation for all meetings.

Mr. Speaker, for a matter of content. The work is not finished. It was referred to the family court and therefore I do not have to come back to that. I look at the minister. The executive power has been given another task from the legislature, including in the form of a brochure to be prepared. I am very well aware that everyone in the field who is dealing with this legislation, not least the peace judges, must be consulted. Models must be created to make the transition as smooth as possible, because any change is difficult.

I would suggest that the text that was prepared be included in the report. This may be a new way of working, but it allows [...]

I agree with the congratulations. Ten years of work result in a bill that contains a fundamental change in the status of the will-bearing persons. Fortunately, it is carried out by all parties, as it should be. It means not only a simplification of current regulations, but also a principled change for the person to be protected.

As colleague Lahaye-Battheu said, every year we see an increase in the number of people who need to appeal. This indicates that the bill responds to a social need. It is also important that Belgium adheres to the international standards of the Council of Europe and the United Nations.

The bill is linked to the proposal on the Family Court, which is currently under consideration in the Senate. The entry into force of both must take place simultaneously, because they are connected and can only exist in this way. My administration has worked extremely well with the staff, especially with those of the CD&V group, witnessing the approval of the amendments. We must do the same for the establishment of family courts. Hopefully, together with Parliament, we will make a breakthrough in the coming months.

I congratulate all staff and Members of Parliament on their work over the past ten years and on the excellent bill.

Feb. 28, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, my report will be concise in so far as the House has already deliberated long on this draft before it is transmitted to the Senate, which has made an amendment regarding the foundations likely to be able to fulfill the role of general administrator. The Justice Committee returned to its original text. Therefore, it can be considered that our discussions have already taken place.

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