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Published online by Cambridge University Press: 22 December 2020
INTRODUCTION
Reaching an advanced age is often associated with health problems. Although it appears that the vast majority of the elderly is able to function autonomously, health problems can have an influence on the extent to which the elderly person is able to take part in legal transactions or perform certain personal or financial actions personally and independently.
Belgian legislation provides tailored protection for persons who are not able to fulfil their own interests sufficiently because of their state of health, in particular by placing the person under judicial protection. The legal framework on adult protection measures was reshaped by the Law of 17 March 2013 on the reform of the legal framework on incapacity and the establishment of a new protection status consistent with human dignity (hereinafter abbreviated: Law on Protected Persons). Since that reform, there is only one legal protection status (previously four) that is tailor-made by the court to the protected person. Adult protection measures fall within the competence of the justice of the peace (cantonal court). The judicial protection can relate both to personal matters and matters regarding assets, depending on the actual situation of the person to be protected. The judicial protection measure entails, firstly, that the court determines the acts for which the person is legally incapacitated. As a result, all the acts performed by the protected person in spite of his incapacity, are subject to nullification. Secondly, the measure consists in the court appointing an administrator (also called ‘guardian’). The administrator acts together with the protected person (i.e. in a regime of assistance) or in the place of the protected person (i.e. in a regime of representation) in such a way that this person can participate in legal transactions.
This contribution will examine more closely the application of this adult protection measure for the elderly in Belgium. This contribution sets the age limit of the group of elderly people at 65 years, regardless of the fact that not every person aged over 65 identifies himself with the ‘elderly’ or ‘elderly persons’ group. The choice for this age limit is inspired by the fact that 65 years is currently the official retirement age in Belgium.
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