Judicial protection measure (sauvegarde de justice): a complete practical guide to protecting a vulnerable person

Judicial protection (sauvegarde de justice) is the lightest legal protection measure provided for by the French Civil Code. It is intended for adults who, without being wholly incapacitated, have difficulty managing their personal or financial interests on their own. Unlike curatorship (curatelle) or guardianship (tutelle), this temporary protection largely preserves the person's autonomy while providing immediate legal security.

This guide sets out the conditions for opening the measure, the procedure, the practical effects of the measure and its practical limits. It is intended for families facing the frailty of a relative, for healthcare professionals and for legal practitioners who support these delicate situations.

What is judicial protection (sauvegarde de justice)?

Definition and main characteristics

The judicial protection measure, defined in Articles 433 to 439 of the French Civil Code, is a temporary legal protection. It concerns adults whose mental or physical faculties are impaired by illness, infirmity or weakening due to age, where that impairment does not immediately justify a heavier measure.

This protection has three essential characteristics. First, it is temporary: its maximum duration is six months, renewable once. Second, it is light: the protected person retains the exercise of his or her rights and may perform all acts of civil life. Third, it is protective: it makes it possible to annul or reduce acts that are manifestly contrary to the person's interests.

Distinction from other protection measures

Judicial protection is clearly distinguished from curatorship and guardianship. Unlike those regimes, it does not organise permanent assistance or representation. A person under judicial protection keeps full legal capacity and may contract, sell, buy or give without prior authorisation.

This measure also differs from family authorisation (habilitation familiale), introduced by the law of 23 March 2019. Family authorisation allows a relative to perform specific acts on behalf of the vulnerable person, whereas judicial protection merely creates a safety net a posteriori.

Conditions for opening the measure

Substantive conditions: impairment of faculties

Article 425 of the French Civil Code sets out the general principle of protection measures. To benefit from judicial protection, the person must show a medically established impairment of mental or physical faculties of a kind that prevents the expression of his or her will.

This impairment may result from various causes: early-stage Alzheimer's disease, psychiatric disorders that are stabilised but recurrent, moderate mental disability, or temporary weakening following a stroke. What matters is that the impairment is medically established and that it compromises the person's ability to defend his or her interests.

The guardianship judge (juge des tutelles) has sovereign discretion to assess whether the person's condition justifies protection. The judge may consider that a person with mild cognitive disorders requires judicial protection, whereas another person with more marked disorders that are compensated by an attentive circle of family and friends does not.

The need for protection

Beyond the impairment of faculties, it must be shown that the person needs to be protected. This need may result from vulnerability to malicious influence, an inability to manage his or her assets, or a risk of dissipation of his or her property.

Take a 75-year-old person showing the first signs of dementia. If the person lives alone and begins to make ill-considered purchases or to respond favourably to dubious telephone solicitations, the need for protection becomes obvious. By contrast, if the same person has effective family support and relatives manage his or her important affairs de facto, the measure might be considered premature.

Opening procedure: two possible routes

Opening on a medical declaration

The first procedure, provided for in Article 434 of the French Civil Code, allows judicial protection to be opened automatically on a simple declaration by the treating doctor or hospital doctor to the public prosecutor (procureur de la République).

This medical declaration must be detailed and reasoned. The practitioner must explain why the person's state of health justifies this immediate protection. The declaration is sent to the public prosecutor of the place where the person lives or is being treated.

The public prosecutor then has 15 days to oppose the measure. Absent opposition, judicial protection takes effect automatically. This procedure has the advantage of speed: it allows immediate protection without waiting for a court decision, which is particularly useful in a medical emergency or a sudden vulnerability.

Opening on a court decision

The second route, governed by Article 435 of the French Civil Code, requires an application to the guardianship judge. This procedure follows the general rules applicable to protection measures for adults.

The following may apply to the judge: the person concerned, his or her spouse or civil partner (PACS), ascendants, descendants, brothers and sisters, and also the public prosecutor ex officio or on a report from third parties.

The application must be accompanied by a detailed medical certificate issued by a doctor on the list drawn up by the public prosecutor. This certificate, which is paid for (about €160), describes precisely the impairment of faculties and its consequences for the person's ability to look after his or her interests.

The judge summons the person to be protected for an interview, unless his or her state of health does not permit it. The judge may also order a social inquiry and hear relatives. The decision, given in the form of an order, may be appealed within 15 days.

Legal effects of the measure

Retention of legal capacity

A person under judicial protection retains full legal capacity. He or she may perform alone all acts of civil life: sign a lease, open a bank account, take out a loan, sell real property or draw up a will.

This freedom of action is both the strength and the limit of the measure. It allows the person to preserve his or her autonomy and dignity, but does not prevent the person from performing acts that harm his or her interests.

Protection mechanism a posteriori

The legal protection offered by judicial protection operates only after the event. Article 435 of the French Civil Code makes it possible to annul or reduce acts contrary to the interests of the protected person, according to the rules applicable to acts performed by a person in a state of dementia.

To obtain the annulment of an act, double proof must be provided of the state of dementia at the time of the act and of the harmful nature of the act. This proof may prove difficult to establish, especially if the act dates back several months.

Take a person under judicial protection who sells his or her flat at a derisory price. The heirs may seek annulment of the sale by showing that the seller was in a state of dementia and that the price was manifestly inadequate. The court will assess both conditions at its sovereign discretion.

Management of assets

No ad hoc administrator is appointed when judicial protection is opened. The protected person continues to manage his or her own property and income. The person receives retirement pensions directly, manages his or her bank accounts and disposes freely of his or her funds.

This absence of a representative may pose practical difficulties. If the protected person becomes wholly unable to manage his or her affairs, it will be necessary to apply for the appointment of a special agent (mandataire spécial) to perform urgent acts, or to seek a heavier protection measure.

Duration and renewal of the measure

Initial and maximum duration

Judicial protection is ordered for a maximum period of six months. This brevity is explained by its temporary and transitional nature. It must allow either an improvement in the person's condition or a more thorough assessment with a view to a more suitable measure.

This period runs from the medical declaration or the court decision. It may be extended only by a new decision of the guardianship judge, who must find that the initial conditions are still met.

Possibility of renewal

The measure may be renewed only once, for a maximum of a further six months. The total duration of judicial protection therefore cannot exceed one year.

This renewal must be requested before the end of the first period. It requires a new medical certificate attesting to the persistence of the impairment of faculties and the need for protection.

Beyond this maximum duration of one year, if protection remains necessary, an application should be made for curatorship or guardianship. The guardianship judge may in any event, at any time during the judicial protection, convert the measure into heavier protection if the person's condition so justifies.

End of the judicial protection measure

Grounds for termination

Judicial protection ends automatically on expiry of the period set, if no renewal or replacement measure has been taken. It may also end before that date by court decision.

The measure also ends on the death of the protected person or on an improvement in his or her state of health. In the latter case, the person himself or herself, relatives or the public prosecutor may apply to the judge for early discharge of the measure.

Transition to other measures

In practice, judicial protection is often a transitional step towards more structured protection. If the person's condition does not improve, the judge may order curatorship or guardianship even before judicial protection expires.

This transition allows continuity of protection without a break. The new measure takes effect immediately, avoiding any period of legal vulnerability. The judge may also order this substitution ex officio, without waiting for an application from the persons concerned.

Limits and practical drawbacks

No day-to-day assistance

The main limit of judicial protection lies in the absence of concrete day-to-day assistance. The protected person remains alone with his or her decisions, without advice or prior control. This freedom may prove problematic if the impairment of faculties worsens rapidly.

Unlike curatorship, no curator assists the person in important acts. Unlike guardianship, no guardian represents the person for acts of disposal. This absence of a permanent representative may create situations of deadlock, particularly in dealings with banks or administrative bodies.

Evidential difficulties in nullity actions

The effectiveness of protection a posteriori depends largely on the ability to prove the state of dementia at the time of the disputed act. This proof may prove difficult, especially if the act dates back several months and no contemporaneous medical evidence exists.

The courts require rigorous proof of the state of dementia, which must be distinguished from mere weakness or influence. A disadvantageous act is not enough to establish a state of dementia if it results from a deliberate choice of the person, even a questionable one.

Reluctance of contracting third parties

Some banks or notaries may be reluctant to contract with a person under judicial protection, for fear of the act being called into question later. This mistrust, legally unjustified since the person retains capacity, may create practical difficulties. Where the disagreement with the bank persists, the complaint, mediation and court action routes are set out in our article on remedies in a dispute with one's bank.

These professionals should be reminded that judicial protection is not an incapacity and that refusing to contract with the protected person could amount to discrimination.

Practical advice for families

Documenting the person's condition

The relatives of a person under judicial protection have an interest in documenting precisely the progress of the person's state of health and abilities. This documentation may later be used in the event of a challenge to an act or a request to change the measure.

It is advisable to keep a detailed log of the difficulties observed: memory problems, disorientation, inappropriate purchases, vulnerability to solicitations. These factual, dated and detailed items provide a solid basis for any court proceedings.

Monitoring important acts

Although the person under judicial protection retains freedom of action, relatives may legitimately exercise benevolent supervision. The aim is to detect manifestly harmful acts quickly so as to bring, where appropriate, an action for annulment within the required time limits.

This supervision must remain respectful of the person's autonomy. It cannot justify systematic control or interference with the person's correspondence. The aim is to preserve a delicate balance between protection and freedom.

Anticipating the development of the measure

As judicial protection is temporary, its development should be anticipated. If the person's condition does not improve, an application for curatorship or guardianship must be prepared before the measure expires. This anticipation avoids breaks in protection and periods of vulnerability.

Families may use the period of judicial protection to observe their relative's real needs and determine the most appropriate level of protection. This observation phase usefully informs the choice between simple curatorship, reinforced curatorship or guardianship.

Frequently asked questions

Can a person under judicial protection vote?

Yes, a person under judicial protection retains all civic rights in full, including the right to vote. Article L. 5 of the French Electoral Code provides for deprivation of the right to vote only in the case of guardianship with an express mention in the judgment, which is not the case for judicial protection.

Can a will drawn up under judicial protection be challenged?

The will may be challenged under the ordinary rules if it is shown that the testator was in a state of dementia when it was drawn up. Judicial protection does not create a presumption of dementia, but makes it easier to prove the impairment of faculties for the period in question.

Is a sale of real property signed under judicial protection valid?

The act is valid in principle, as the person retains legal capacity. It may nonetheless be annulled a posteriori if the seller's state of dementia and the harmful nature of the sale are proved (derisory price, absence of advice, etc.).

Who pays the costs of the procedure?

The procedure on a medical declaration is free of charge. The court procedure entails the cost of a medical certificate (about €160) borne by the applicant. Legal aid may be granted subject to means.

Can judicial protection and family authorisation be combined?

No, these two measures cannot be combined. Family authorisation, more recent and more targeted, is often a preferable alternative to judicial protection where specific acts must be performed for the vulnerable person.

Can the bank freeze the accounts of a person under judicial protection?

No, the bank cannot freeze accounts on the sole ground of judicial protection. The person retains free disposal of his or her funds. A freeze would be justified only where misappropriation by third parties is suspected or on a specific court decision.

How long does it take to obtain judicial protection?

The procedure on a medical declaration takes effect immediately, unless the public prosecutor objects within 15 days. The court procedure generally takes 2 to 4 months depending on the congestion of the court and the complexity of the case.

Judicial protection remains a valuable protection measure for transitional or urgent situations. Its flexibility and lightness make it a suitable tool for people who retain relative autonomy while showing occasional vulnerability. However, its limited effectiveness and temporary nature call for careful thought about the desirable move towards more structured measures. Before starting this procedure, the protection needs of the person concerned should be assessed precisely and it should be verified that a less restrictive solution could not address the difficulties encountered.