Protect yourself and your loved ones from misfortune and illness
Who will manage your affairs, for example if you become demented or have a serious accident and there is no living will?
Guardianship, mentorship and curatorship; three legal protection options
The law contains various provisions for this purpose.
It can happen that someone – for example, due to an illness like dementia – can no longer properly determine their own wishes regarding care or can no longer make independent decisions about their assets. To protect such a vulnerable person, the law includes several provisions. These are "trust," "mentorship," and "curatorship." Depending on which interests the person can no longer represent – for example, in the areas of assets and/or care – one or more of these forms of protection can be applied.
The following explains what these different schemes entail and how they differ from each other.
Please note! The trust applies to someone's assets, not the person themselves. Often, all assets are placed under trust, but it's also possible that only certain assets are subject to trust.
When the subdistrict court judge orders the guardianship, they also immediately appoint a guardian. This person will be responsible for managing the beneficiary's assets. The beneficiary can express a preference for the guardian. This could be their partner, one of their children, or another family member, or even a professional guardian. The subdistrict court judge will usually follow the beneficiary's preference, unless they suspect the intended guardian is unsuitable for the task.
The trust restricts the beneficiary's actions regarding the assets under trust. For example, the beneficiary will need the trustee's cooperation to make certain decisions about these assets, such as selling or donating them. It's important to consider these decisions separately from non-financial matters, such as their care or nursing, because the trust does not apply to these matters. A person whose assets are under trust can still make decisions about care themselves, unless, in addition to the trust, a guardianship, for example, has been established (read more about this below).
Is the beneficiary married in community of property? The trust also affects the beneficiary's spouse! If the trust pertains to assets that fall within the marital community (and therefore belong to the spouses jointly), the beneficiary's spouse cannot independently decide on those (joint) assets, for example, by selling or donating them. There is an exception: the spouse may independently make decisions about joint assets if they are under their "management," such as assets belonging to that spouse's business or assets inherited by that spouse.
Mentorship: someone else who can make non-financial decisions for you
It's common for the administrator to also be appointed as a mentor, but this isn't required. Unlike trust, mentorship does address non-financial interests: if someone's physical or mental condition makes it impossible for them to properly manage their own care, nursing, treatment, and support, the subdistrict court judge can appoint a mentor.
The person assigned a mentor is also called the "person involved." The request for the appointment of a mentor can be submitted by the same group of people as described above for guardianship. As with guardianship, the subdistrict court judge generally appoints the person preferred by the person involved as mentor, but may also deviate from this.
The mentor represents the individual in matters of their care, nursing, treatment, and guidance. This means that during the mentorship, the individual can no longer independently make important decisions about these matters unless the mentor gives permission. The mentor must perform their duties carefully and involve the individual as much as possible. For example, the mentor must encourage the individual to advocate for their own interests in these matters, to the extent (still) possible.
Guardianship: someone else who takes over all your decisions
Guardianship does not distinguish between financial and non-financial interests, as is the case with trust and mentorship. A guardianship is ordered by the subdistrict court judge when a person, due to their physical or mental condition, cannot properly manage their own interests or endangers the interests of others. In short, guardianship can be seen as a combination of trust and mentorship. The major difference is that with trust and mentorship, the beneficiary and the person involved are permitted to make certain decisions independently, while the person placed under guardianship (also known as a "curandus") generally is not. In such cases, they require the guardian's permission.
Please note: guardianship can only be imposed if another, appropriate and less drastic measure is not possible.
The request for the appointment of a guardian can be submitted by the same group of people as for guardianship and mentorship. Here too, the guardian may express a preference for a person.
Summary and tip
This article discusses the protective measures of guardianship, mentorship, and curatorship. If someone, for example, due to illness or a serious accident, is no longer (properly) able to manage their own financial and/or personal interests, the law stipulates that the subdistrict court judge can appoint another person to manage these interests on the sick person's behalf. Each measure has its own specific nature and application. For example, guardianship pertains only to a person's assets, while mentorship covers personal matters such as care and nursing. Curatorship is the most far-reaching protective measure and impacts multiple aspects of the person's life.
In cases of early-stage dementia, for example, it's important to consider who in your circle you'd like to represent your interests when you're no longer able to do so yourself. However, inability to act independently can also occur suddenly, for example, as a result of a heart attack or a serious accident.
If this situation applies to you or someone around you, we recommend that you discuss the possible applications of the protective measures with us in a timely manner. This will give you a better understanding of the options available should a particular measure prove necessary, giving you peace of mind. We can also guide you through the procedure for applying for a protective measure if necessary.
Tip: Would you like to have these matters properly arranged in advance? We can advise you on a living will. This allows you to specify who you want to manage your affairs if you are no longer able to do so yourself.
To be able to make a living will, you must be of sound mind, or "mentally competent." So don't wait until it's too late. Visit us or call us. The consultation is free. To schedule an appointment for an in-office consultation or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.
This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.
Guardianship, mentorship and curatorship; three legal protection options
The law contains various provisions for this purpose.
It can happen that someone – for example, due to an illness like dementia – can no longer properly determine their own wishes regarding care or can no longer make independent decisions about their assets. To protect such a vulnerable person, the law includes several provisions. These are "trust," "mentorship," and "curatorship." Depending on which interests the person can no longer represent – for example, in the areas of assets and/or care – one or more of these forms of protection can be applied.
The following explains what these different schemes entail and how they differ from each other.
Guardianship: someone else who manages your finances/assets
If someone, due to their physical or mental condition, can no longer maintain their finances and administration, or properly manage other assets, the subdistrict court judge can place their assets under administration. The person whose assets are placed under administration is also called the "beneficiary." The subdistrict court judge establishes the administration at the request of the beneficiary themselves, or at the request of their partner or other family members.Please note! The trust applies to someone's assets, not the person themselves. Often, all assets are placed under trust, but it's also possible that only certain assets are subject to trust.
When the subdistrict court judge orders the guardianship, they also immediately appoint a guardian. This person will be responsible for managing the beneficiary's assets. The beneficiary can express a preference for the guardian. This could be their partner, one of their children, or another family member, or even a professional guardian. The subdistrict court judge will usually follow the beneficiary's preference, unless they suspect the intended guardian is unsuitable for the task.
The trust restricts the beneficiary's actions regarding the assets under trust. For example, the beneficiary will need the trustee's cooperation to make certain decisions about these assets, such as selling or donating them. It's important to consider these decisions separately from non-financial matters, such as their care or nursing, because the trust does not apply to these matters. A person whose assets are under trust can still make decisions about care themselves, unless, in addition to the trust, a guardianship, for example, has been established (read more about this below).
Is the beneficiary married in community of property? The trust also affects the beneficiary's spouse! If the trust pertains to assets that fall within the marital community (and therefore belong to the spouses jointly), the beneficiary's spouse cannot independently decide on those (joint) assets, for example, by selling or donating them. There is an exception: the spouse may independently make decisions about joint assets if they are under their "management," such as assets belonging to that spouse's business or assets inherited by that spouse.
Mentorship: someone else who can make non-financial decisions for you
It's common for the administrator to also be appointed as a mentor, but this isn't required. Unlike trust, mentorship does address non-financial interests: if someone's physical or mental condition makes it impossible for them to properly manage their own care, nursing, treatment, and support, the subdistrict court judge can appoint a mentor.
The person assigned a mentor is also called the "person involved." The request for the appointment of a mentor can be submitted by the same group of people as described above for guardianship. As with guardianship, the subdistrict court judge generally appoints the person preferred by the person involved as mentor, but may also deviate from this.
The mentor represents the individual in matters of their care, nursing, treatment, and guidance. This means that during the mentorship, the individual can no longer independently make important decisions about these matters unless the mentor gives permission. The mentor must perform their duties carefully and involve the individual as much as possible. For example, the mentor must encourage the individual to advocate for their own interests in these matters, to the extent (still) possible.
Guardianship: someone else who takes over all your decisions
Guardianship does not distinguish between financial and non-financial interests, as is the case with trust and mentorship. A guardianship is ordered by the subdistrict court judge when a person, due to their physical or mental condition, cannot properly manage their own interests or endangers the interests of others. In short, guardianship can be seen as a combination of trust and mentorship. The major difference is that with trust and mentorship, the beneficiary and the person involved are permitted to make certain decisions independently, while the person placed under guardianship (also known as a "curandus") generally is not. In such cases, they require the guardian's permission.
Please note: guardianship can only be imposed if another, appropriate and less drastic measure is not possible.
The request for the appointment of a guardian can be submitted by the same group of people as for guardianship and mentorship. Here too, the guardian may express a preference for a person.
Summary and tip
This article discusses the protective measures of guardianship, mentorship, and curatorship. If someone, for example, due to illness or a serious accident, is no longer (properly) able to manage their own financial and/or personal interests, the law stipulates that the subdistrict court judge can appoint another person to manage these interests on the sick person's behalf. Each measure has its own specific nature and application. For example, guardianship pertains only to a person's assets, while mentorship covers personal matters such as care and nursing. Curatorship is the most far-reaching protective measure and impacts multiple aspects of the person's life.
In cases of early-stage dementia, for example, it's important to consider who in your circle you'd like to represent your interests when you're no longer able to do so yourself. However, inability to act independently can also occur suddenly, for example, as a result of a heart attack or a serious accident.
If this situation applies to you or someone around you, we recommend that you discuss the possible applications of the protective measures with us in a timely manner. This will give you a better understanding of the options available should a particular measure prove necessary, giving you peace of mind. We can also guide you through the procedure for applying for a protective measure if necessary.
Tip: Would you like to have these matters properly arranged in advance? We can advise you on a living will. This allows you to specify who you want to manage your affairs if you are no longer able to do so yourself.
To be able to make a living will, you must be of sound mind, or "mentally competent." So don't wait until it's too late. Visit us or call us. The consultation is free. To schedule an appointment for an in-office consultation or a video call, please call +31 (0)10 44 53 777. We look forward to seeing you.
This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.
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