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
- 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
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
- 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,
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
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
Article 1:457 Nullification of voidable juridical
- 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
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
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
- 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.