The home of an adult under guardianship – Family and matrimonial

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Monegasque: The home of an adult under guardianship

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Domicile is a legal concept that has many civil consequences.

For example, in the absence of a choice of law, the domicile is used to determine the law applicable to a succession, a matrimonial regime, the rights and duties of the spouses or the law applicable to a contract. Domicile is also the main criterion for determining the applicable jurisdiction of Monegasque courts.

From the point of view of civil law (tax law may have a different approach to the notion of domicile), a person’s domicile is the place where he has his main establishment.

This principle is not exhaustive as there are several exceptions. This is the case of the home of an adult under guardianship. Under the terms of article 78, paragraph 3, of the Civil Code, the domicile of an adult under guardianship is that of his guardian.

With regard to these provisions, a person domiciled in Monaco will be presumed to have moved his civil domicile at the time of the pronouncement of the guardianship measure if his guardian is domiciled outside Monaco.

Fortunately, case law has clarified this presumption of domicile. There was a risk that the presumption would be qualified as irrebuttable, that is to say that it could not be proven otherwise. It is now clear that the presumption of domicile of an adult under guardianship is a simple presumption. This qualification allows anyone who challenges the presumption of domicile of an adult under guardianship to challenge it by providing proof to the contrary.

This proof can be provided by demonstrating that the adult, when he was able to do so, had established his domicile in Monaco before the initiation of the guardianship measure, and that his actual residence in Monaco was maintained after the initiation of the measure.

It should also be noted that case law equates the guardian with the judicial administrator appointed in the context of an unorganized guardianship measure (also called a judicial administration measure). The presumption of domicile of an adult under guardianship therefore applies to an adult under guardianship.

In summary, although the presumption that an adult under guardianship is domiciled in the domicile of his guardian is not exhaustive, it is still necessary to provide evidence to the contrary to contest it. In other words, the domicile of an adult under guardianship will be that of his guardian or legal administrator until proof to the contrary.

It is therefore recommended that the relatives of a vulnerable adult who has not yet been placed under judicial protection seek advice from a lawyer in order to assess the consequences of such a measure, in particular with regard to the law applicable to the future succession of the adult. protected.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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