Law no. 140/2022 – basic problems in the notarial activity

Flavius Boar
Flavius Boar

In Romania, the protection of vulnerable adults was profoundly modified in recent times, with the entry into force of the Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities. This act was adopted following Decision no. 601/2020 of the Romanian Constitutional Court which declared the judicial interdiction (judicial ban) to breach the constitutional guarantees of the rights belonging to disabled persons. Several instruments are now provided for the protection of vulnerable adult persons, inspired by the UN Convention on the Rights of Persons with Disabilities, by the recommendations of the Committee of Ministers of the Council of Europe and by the resolutions of the European Parliament. This material aims to summarize the impact of this reform in the notarial activity, as well as the solutions already taking shape – as outlined in the country sheets managed by the Council of Notaries in the European Union and co-financed by the European Commission (“The Vulnerable in Europe”).

The actual protective measures involving limits to legal capacity were left however to the jurisdiction of the courts. Still, it is worth nothing that they have been broken down in two (1), and the judge can now grant the person in question the possibility to conclude by herself some legal acts provided for in his decision, without any requirement of representation or assistance (2).

1. Counselling and guardianship

The principle is that if the deterioration of the mental faculties is only partial, but it is necessary for this person to be continuously advised in the exercise of his rights and freedoms, then he can benefit from judicial counselling, following art. 164 para. 2 of the Civil code. However, if the deterioration of the mental faculties is total and permanent, the law presumes that it is necessary for the adult to be continuously represented in the exercise of his rights and freedoms, by way of establishing a special guardianship based on art. 164 para. 4 of the Civil code.

In summary, the distinction is that in case of judicial counselling, the rules applicable by default are those provided for the guardianship of minors aged 14 years or older, unless the law dictates otherwise. Conversely, in case of special guardianship, the rules applicable by default are those provided for the guardianship of minors that have not yet reached the age of 14, insofar as the law does not prescribe differently, following art. 171 para. 2 and para. 3 of the Civil code. This means the judicial counsellor is only appointed to provide authorization for the legal acts concluded by his ward, for which the consent of the latter remains necessary. The special guardian is on the other hand called in as an actual representative, because the protected person is deprived of his civil capacity to sign some important documents by himself.

Both cases concern the adult who „cannot take care of his own interests due to a temporary or permanent, partial or total impairment of his mental faculties, established following medical and psychosocial assessment, and who needs support in forming or expressing his will”, as provided for in art. 164 para. 1 of the Civil code.

2. Valid consent

In the above-mentioned legal reform, it is also provided that the person for which guardianship or judicial counselling was established can by himself validly provide consent for some legal acts, without further authorization requirements. This implies from the guardianship court an explicit determination of the acts for which representation or approval is required, after duly considering the autonomy of the person in question and his specific needs. The court can even state that the protective measure only concerns a given category of legal acts.

In this case, it is provided for that establishing the measure „does not affect the capacity of the protected person to conclude the legal acts for which the court has determined that the consent of the judicial counsellor or his representation by the guardian is not necessary”, following art. 168 para. 4 and para. 5 of the Civil code.

There are two cases where the new framework requires instead a more consistent intervention by the notary public. This involves on the one hand the „assistant”, appointed on request from the vulnerable adult (I), and on the other hand, the „mandate of protection”, which is grounded on already existing regulations from our Civil code (II).

I. The originality of the assistance

First, the „assistance” mechanism was provided, taken from an equally recent law from the province of Quebec, Canada. Specifically, the act in question is titled Loi modifiant le Code civil, le Code de procédure civile, la Loi sur le curateur public et diverses dispositions en matière de protection des personnes, from the 3rd of June 2020, into force since November 2022.

However, this instrument raised issues in some practical analyses because of the need for clearer criteria in order to ascertain its personal field of application in relation to that of the other protective measures (A). In addition, the legal content of the tasks bestowed upon the assistant, as currently regulated, places him somewhat in the position of a personal adviser, so that the measure rather seems to imply from to notary public to certify the discernment of the vulnerable adult for his future acts (B).

A. Clearer criteria for the personal field

The applicable regime involves for the notary public to appoint an assistant in favour of the vulnerable adult, called to be his intermediary in relation to third parties to whom he communicates the assisted person’s decisions. This is explicitly stated in art. 1 of our Law no. 140/2022, and art. 3 para. 1 specifically declares that the legal capacity of the vulnerable adult is not affected in any way by the appointment of such an assistant.

However, it has sometimes been suggested that some legislative clarifications are still necessary, because the entire applicable framework otherwise implies people placed at best right next to the limit where they would require the establishment of actual protective measures. The instrument of „assistance” explicitly aims at „the adult who, due to an intellectual or psychosocial disability, needs support to take care of his person, manage his patrimony and to exercise, in general, his rights and civil liberties”, according to art. 1 para. 1 of Law no. 140/2022. The additional normative specifications should therefore develop the criteria of distinction between these persons and those directly affected by actual restrictions brought to the legal capacity of a vulnerable adult through the establishment of special guardianship or judicial counselling.

B. Specific content for the assistant’s duties

In addition, the opinion that the concrete content of the assistant’s tasks should be better specified was also formulated, because the currently applicable normative framework seems rather to restrict his competences to those typical of a personal advisor. Indeed, the subsequent provisions explicitly state that, in fact, the assistant does not conclude legal acts on behalf of the vulnerable adult, nor does he approve those concluded alone by the latter. Therefore, in practice it is currently considered that the disagreement of the appointed assistant or his absence does not in itself constitute a reason to challenge the validity of agreements concluded directly by the protected person.

Some practical problems also arise from the fact that the current regime of the legal capacity does no longer position itself as clearly as before in relation to the concept of discernment, as a requirement for the validity of contracts. For example, the text of art. 172 para. 2 of the Civil Code, amended following the reform, now states that the validity of the agreements consented to by the person in question before the establishment of judicial counselling or special guardianship can only be challenged if, at the time when they were concluded, the lack of discernment was notorious or known to the other party. However, there is no similar clarification in respect of the acts concluded by the same person after the moment when the protective measures were established.

In this line of thought, it was sometimes concluded in some opinions that the instrument of „assistance” strictly entails the involvement of the notary public in a form of certifying the discernment of the adult with psychosocial or intellectual disabilities, for his subsequent acts. This implies for the future that if the procedural conditions required by the applicable protective measure are met, other issues like the discernment, presumed by way of consequence, no longer needs to be verified in his person. The same should go for acts concluded alone without any consent or representation by the adult protected by special guardianship or judicial counselling, when this was explicitly allowed by the court decision referred to in art. 168 para. 4 and 5 of the Civil Code.

The assistant is appointed by the notary public whose office is within the territorial jurisdiction belonging to the court of first instance where the ward has his domicile or residence, following art. 12 letter s1 of Law no. 36/1995 regarding public notaries and notarial activity.

II. The reconfirmation of the protection mandate

From a completely different perspective, since October 1, 2011, when our new Civil Code entered into force, the vulnerable adult has the possibility to designate the person to be appointed as his guardian. This instrument also involves the intervention of the notary public. More specifically, anyone with full legal capacity and even those benefiting from judicial counselling can appear before a notary to designate the person who should be appointed by the guardianship court as their legal representative, charged with the responsibility of their person and their assets, if a situation of incapacity would arise. This possibility can cover the respective adult and his children, according to art. 114, art. 166 and art. 170 of the Civil Code. The appointment does, however, require the appointee to be confirmed by the court as guardian.

In this context, the contribution of the reforms undertaken by Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities was in particular the establishment of a consistent regime for the notion of the protection mandate, which apparently differs from the previously regulated instrument. This new concept is mentioned for instance by art. 166 para. 2 of the Civil Code, but it will also undoubtedly require a period of accommodation. The regulatory framework applicable to it is now included in articles 20291 – 202910 of our Civil code and is presented in more detail than the previous regime. For example, the vulnerable adult is now explicitly allowed to state in this document any wishes regarding his care and living conditions after the onset of incapacity, based on art. 20292 para. 1 of the Civil Code. It is also provided that the clauses of the protection mandate can also include the appointment of a certain person, called to receive management reports from the designated legal representative, at recurring time intervals, according to art. 20292 para. 2 of the Civil Code.

However, despite this greater level of regulatory detail, the content of the protection mandate is essentially similar to the designation of the legal representative according to the initial texts of the Civil Code. This is how things stand both from the perspective of its substantial requirements (A) and in terms of the procedural conditions applicable once the state of incapacity has occurred (B). The normative framework resulting from the reform comes, therefore, rather to confirm the regime applicable to this legal mechanism, already provided by the primary texts of our Civil code.

A. Substantive requirements

The issues relevant in this context cover formal requirements (1), the delimitation of the persons who can be designated by way of the protection mandate (2), including the husband alongside the wife (3), as well as the perspective of judicial control of how the related missions are executed (4).

1. The form of the authentic document

The applicable texts now provide that the appointment of the intended protector must take place by unilateral act, convention or by way of the protection mandate, as a regulated legal operation. This is now stated in art. 114 para. 1 and 6 of the Civil Code, regarding minor children or children placed under the guardianship of their parents and in art. 166 para. 1 and 2 of the Civil Code, for the protection of the vulnerable adult. The same texts also provide that the designation of the person of the intended protector must take the form of an authentic notarial document. Parents can also choose to appoint a guardian or family council members for their children in the form of a will, according to art. 114 para. 1 of the Civil Code.

2. The persons who can be designated

In principle, any person can be designated as guardian or judicial counsellor, if not explicitly prohibited by law, according to art. 116 para. 1 of the Civil Code. The latter situation includes cases of incapacity or restricted civil capacity, as well as other situations of vulnerability, persons deprived of parental rights or deprived of other civil rights, either by law or by court decision, as well as persons with bad behaviours, recognized as such by a court, persons in a state of insolvency, persons in conflict of interest or persons to whom the parents has explicitly refused the possibility of being appointed as guardian for their children. This is directly provided for in art. 113 para. 1 of the Civil Code. In addition, guardianship is considered a personal task, hence it follows that once appointed, the person in question must carry out his mission. However, after considering the size and composition of the protected person’s estate, the guardianship court can decide that the administration of the assets will partially or totally be delegated to a specialized natural or legal person, based on art. 122 of the Civil Code.

3. Designation of several persons

Only one natural person or husband and wife together can be guardians, according to art. 112 of the Civil Code. If several persons have been designated as guardians by the vulnerable adult in question, without any order of preference, or there are several relatives or family friends capable of fulfilling the duties of guardianship and who express their desire to be guardians, the guardianship court shall decide between them, taking into account their material conditions, as well as the moral guarantees necessary for the harmonious development of the protected person. This is provided for in art. 115 of the Civil Code.

4. The perspective of judicial control

It is also worth mentioning that the guardian must submit an annual report on his management. This report is forwarded to the guardianship court for review. In addition to the annual report, the guardian is obliged, at the request of the guardianship court, to report at any time how he took care of the vulnerable person, as well as regarding the management of his assets, following art. 152 para. 1 and para. 4 of the Civil Code. In addition, it should be specified that, in principle, the role of the guardian ceases with his death, revocation or replacement. However, in certain circumstances, the guardian can be removed by the court and another person can be appointed in his place. For example, the guardian is revoked if he commits abuses, serious negligence or other acts that make him unworthy, as well as if he does not properly fulfil his task, according to art. 158 of the Civil Code.

B. Procedural matters

Relevant procedural aspects concern the registration of authentic documents in this framework (1), the extent to which the designation of the legal guardian is mandatory for the court tasked with the establishment of the protective measure (2), as well as the necessary legal proceedings on this occasion (3).

1. Registration in the register

The designation of the legal representative by notarial deed must be registered in the National Registry of support and protection measures taken by the public notary and the guardianship court (RNEMSO), which is to be kept by the National Union of the Public Notaries of Romania (UNNPR) The appointment of the guardian can be revoked at any time. The act of revocation is also entered in this special register, based on art. 114 para. 3 and para. 4 of the Civil Code. In art. 9433 para. 3 of the Civil Procedure Code, as resulted from the reform, the obligation of the guardianship court to obtain relevant information regarding the possible existence of such designations or revocations from the said register was reconfirmed.

2. Mandatory for the court

The guardianship court cannot overlook the person designated as his legal representative by the vulnerable adult without the consent of the former, unless this appointment would be contrary to the interests of the protected person, or if the law forbids the appointed person from acting as guardian. This is provided for in art. 116 para. 1 of the Civil Code. The latter hypothesis includes cases of incapacity or reduced civil capacity, as well as other situations of vulnerability concerning the designated person. The same goes if the latter was deprived of parental rights or other civil rights, by law or by court decision, or if he committed bad behaviour, recognized as such by a court, is in a state of insolvency, is in conflict of interests or is a person to whom the parent has explicitly refused the possibility to be appointed as guardian for his children, according to art. 113 para. 1 of the Civil Code.

3. Designation procedure

Before the reform carried out by Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities, no specific procedure was provided for the appointment of the person designated as the legal representative of the vulnerable adult by the guardianship court. The applicable framework in art. 114 para. 5 of the Civil Code only required from the guardianship courts to obtain relevant information regarding the existence of such designations or their revocation from the RNEMSO, kept by UNNPR. The designated person was then appointed in this capacity, unless this would be contrary to the interests of the vulnerable adult or if the appointed person has been prohibited by the law from acting as a guardian, within the meaning of art. 116 para. 1 of the Civil Code. Along with the new legal framework applicable to the protection mandate according to articles 20291 – 202910 of the Romanian Civil code, a special section appeared in the Romanian Civil Procedure Code with provisions regarding the judicial approval of the designation. This is currently regulated in articles 9431-9437 of the latter normative act. For example, it is explicitly provided for the termination of the curatorship instituted during the procedure if the request for judicial approval of the protection mandate was rejected, according to art. 9436 para. 2 of the Code of civil procedure.

Conclusions

In short, despite the increase in the level of normative details, the content of the protection mandate remains similar in essence to what the initial texts of the Civil Code provided, when the protected person previously designated a guardian in case of incapacity. However, additional legislative clarifications are still needed in Romanian law regarding the personal field of the assistance, given in the competence of the public notary, as well as regarding the concrete role of the person appointed in this capacity. It would be equally opportune to establish a clearer position in relation to the notion of discernment, as a requirement for the validity of the contracts. Otherwise, it would have to be presumed whenever the procedural conditions required by the applicable protection measure are met.

Notar public asist. univ. dr. Flavius Boar