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Last update: 05-07-2022

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The Vulnerable in Luxembourg

1

Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

Yes, Luxembourg has signed this convention. The convention entered into force in Luxembourg on 1st December 2010[1].

[1] http://www.hcch.net/index_fr.php?act=conventions.status&cid=70

1.1 Which law applies to questions of custody and legal representation of a minor? What criteria are used to determine the applicable law?

The applicable law is determined by said Convention. Reference is made to its Articles 15 (the principle of the application of the lex fori of the contracting states), 16 and 17 (application of the law of the state of the child’s habitual residence) [1].

As regards the other aspects mentioned in question 1.1, but not covered by the convention, the applicable law is the law governing the effects of the parents’ marriage, that is the common national law of the spouses, or, in case they don’t have a common nationality, the law of the spouses’ joint domicile. For children born out of wedlock, the child’s national law governs everything connected to the child and its property.

[1] http://www.hcch.net/upload/conventions/txt34fr.pdf

1.2 Which authority has international and territorial jurisdiction concerning questions of custody?

International jurisdiction is determined either by Council Regulation (EC) No 2201/2003 (also known as Brussels II bis[1], see Article 8 : jurisdiction is granted to the courts of the member state where the child is habitually resident at the time the court is seised), or, in a subsidiary manner, by the above-mentioned convention (see Article 5 : the jurisdiction of the contracting state is determined on the basis of the child’s habitual residence). Outside the scope of application of these provisions, the conflict of laws rules of Luxembourg will apply to each concrete case.

[1] http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:02003R2201-20050301&qid=1416319511551&from=FR

1.3 Which authority has international and territorial jurisdiction concerning questions of representation?

See question 1.2.

2

Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

According to Article 388 of the Civil Code of Luxembourg[1], a minor is a person who has not yet completed eighteen years of age. Article 488, subparagraph 1, of the Civil Code[2] provides that once a person has reached the age of eighteen, he/she is capable of performing all acts of civil life.

As the minor’s incapacity to act alone is a general one, any acts performed by a minor are null and void.

However, there are some occasional exceptions to that rule. Thus, a minor who has completed sixteen years of age can dispose of his/her property by will, for up to half of his/her property that the law allows the minor to dispose of (see Article 904 of the Civil Code[3]). Furthermore, subparagraphs 1 and 3 of Article 148 of the Civil Code[4] provide that a minor cannot get married without parental consent. However, if the parents refuse to consent, the guardianship judge can authorise the marriage if he/she finds the refusal to be unfounded. Furthermore, Article 144, subparagraph 1, of the Civil Code provides that no one can marry before the age of eighteen, but according to the first sentence of Article 145, subparagraph 1, of the Civil Code, the guardianship judge can, for serious reasons, lift the ban[5].

In the context of legal administration, if the interests of the legal administrator are in conflict with those of the minor, the judge can appoint an ad hoc administrator at the request of the minor him/herself. See Article 389-3, subparagraph 2, of the Civil Code[6].

There are a number of other provisions in the Civil Code that provide for occasional participation of minors in adult life. Thus, a minor able to exercise discernment can, according to Article 388-1 of the Civil Code, be heard by the judge in any proceedings that concern him/her[7].

As to an emancipated minor (see Article 476 of the Civil Code), he/she is capable, like an adult, to perform all transactions of civil life, see Article 481 of the Civil Code. However, he/she cannot trade[8].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T11_majorite_protection_majeurs.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T2_donations_testaments.pdf

[4] http://www.legilux.public.lu/leg/a/archives/2014/0125/2014A1798A.html

[5] http://www.legilux.public.lu/leg/a/archives/2014/0125/2014A1798A.html

[6] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[7] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[8] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

2.1 Is it possible for the legal capacity of a minor to be extended in some cases (e.g. right to get married, right to make last will)?

2.1.1 Is a decision required to extend the legal capacity? If so, who is competent to decide on the extension of the legal capacity?

See above, a legal decision is not required in the cases described.

2.1.2 List the transactions that the minor may enter into alone (e.g. the right to make a last will) with reference whether approval of some other person or authority is necessary for such transactions.

See above.

3

Who has the general right of custody of a minor?

During marriage, fathers and mothers exercise parental authority jointly (see Article 375 of the Civil Code[1]). As far as habitual acts are concerned, there is a legal presumption according to which each spouse is deemed to act with the consent of the other spouse when performing alone an act of parental authority (see Article 375-2 of the Civil Code[2]).

In case of disagreement between the parents on what is in the child’s interest, Article 375-1 of the Civil Code[3] provides that the more diligent spouse can go in front of the guardianship judge who will decide upon the matter, after having tried to reconcile the parties.

One has to distinguish the following three cases when parental authority, and all respective duties, are entrusted to a third party :

(a) if neither the father nor mother is in a position to exercise parental authority because of, amongst others, their incapacity, absence, estrangement from the child, if they have been found criminally guilty of not performing their maintenance obligation (see the cases enumerated under Article 376 of the Civil Code[4]), or because they have both died ;

(b) in case of renunciation of parental authority under Articles 387-1 and the following sections of the Civil Code[5] ;

(c)in case of loss of parental authority under Articles 387-9 and the following sections of the Civil Code[6].

In cases a) and c), guardianship is set up (see respectively Articles 379 and 387-11, subparagraph 1, of the Civil Code[7]). In all three cases, the judge has to be involved. The law allows for guardianship to be split between a guardian in charge of the person and a guardian in charge of property or, respectively, for certain specific items of property to be entrusted to a deputy guardian (see Article 417 of the Civil Code[8]). In case b), Article 387-5 of the Civil Code[9] provides that, where the child is entrusted to an institution, parental authority be delegated either to the legal person, or to an officer who is a staff member of the institution.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[4] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[5] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[6] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[7] Voir http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf ainsi que http://www.legilux.public.lu/leg/a/archives/2014/0125/a125.pdf#page=1

[8] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[9] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

3.1 What is the scope of the right of custody?

According to Article 372, subparagraph 2, of the Civil Code[1], parental authority consists of protecting the child as to its security, health and morality. The parents have the right and obligation to custody, supervision and education. Furthermore, the parents are also in charge of administrating the minor’s property (see Article 382 of the Civil Code[2]). In their capacity as legal administrators, they represent the minor in all civil transactions, except in such cases where the law or usage allows minors to act by themselves. If the interests of the legal administrator are in conflict with those of the minor, he/she has to ensure that the guardianship judge appoints an ad hoc administrator (see Article 389-3, subparagraphs 1 and 2, of the Civil Code[3]). Some specific items of property are not subject to legal administration, see Article 389-3, subparagraph 3, of the Civil Code[4].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[4] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

3.2 Who will appoint the custodian(s), if either one or both parents/custodians are not able to act anymore (e.g. in case of death or loss of legal capacity)?

In the case of death or loss of capacity, the exercise of parental authority falls, as a general rule, to the other parent (see Article 377, subparagraph 1, of the Civil Code[1]) and not to a guardian.

However, if both parents are subject to a general incapacity, the relevant provisions provide for guardianship to be set up (see Article 379 of the Civil Code[2]).

However, in judicial practice, the guardianship judge appoints a public administrator for the child, rather than a guardian. He/she will be chosen preferably from among the members of an organisation, a charity, or a public or private educational institution, without the actual involvement of the family council, the involvement of which is provided for by Articles 407 and the following sections of the Civil Code. The practice is based on the application by analogy of the provisions of Article 433 of the Civil Code[3]. The public administrator thus appointed, has the same rights as regards the person or the property as a legal administrator under judicial control.

Furthermore, the provisions of the law on youth protection allow the competent youth judge to place the minor in question under surveillance, for example in an appropriate establishment (see Articles 1 and 7, subparagraph 1, of the amended law on youth protection of 10 August 1992[4]). According to the provisions referred to, such a placement is possible if the minor habitually flaunts his/her obligation to go to school, engages in debauchery, seeks to make money by gambling, by trafficking, through activities that exposes him/her to prostitution, begging, vagrancy or crime or if his/her physical or mental health, education or social or moral development are compromised.

In such a case, the guardianship judge can also appoint a public administrator in respect of the minor’s property (Article 11, subparagraph 4, first sentence of the above-mentioned law[5]), who will often be a member of staff of the designated establishment.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[2] Voir http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf ainsi que http://www.legilux.public.lu/leg/a/archives/2014/0125/a125.pdf#page=1

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[4] http://www.legilux.public.lu/leg/textescoordonnes/compilation/recueil_lois_speciales/Tome_4.pdf

[5] http://www.legilux.public.lu/leg/textescoordonnes/compilation/recueil_lois_speciales/Tome_4.pdf

3.2.1 On who’s proposal and when the decision on appointment of custody is made?

3.2.2 Is the competent authority free in its choice of a new custodian?

3.2.3 Can the right of custody belong to several persons? Is it possible to have different custodians for different areas (care of property/care of the child itself)?

See above.

3.3 How and by whom will the right of cutody be determined if the parents are arguing about it? Is there a difference between married and unmarried couples?

As regards married couples, Article 375 provides that during marriage, fathers and mothers jointly exercise their authority[1]. In case of disagreement, the guardianship judge can be seised, see Article 375-1 of the Civil Code [2]. If either the father or the mother dies, parental authority falls in its entirety to the other parent (Article 377 of the Civil Code) [3].

As to unmarried couples, the provisions of Article 380 of the Civil Code[4] are relevant : parental authority over a child born out of wedlock is exercised by whichever parent has voluntarily recognised the child, if it has only been recognised by one of them. If both parents have recognised the child, parental authority is granted either to both parents jointly, or to either of the mother or the father, the choice being made based on the child’s interest (Luxembourg jurisprudence). Parental authority can be exercised jointly by both parents, if they make a joint declaration before the guardianship judge. In any case, the guardianship judge can, at the request of the father, the mother, or the public ministry, amend the conditions of the exercise of parental authority in respect of a child born out of wedlock. He/she can decide that it shall be exercised by either one of the parents, or jointly by the father and mother; in such case, he/she shall designate the parent with whom the child will have its habitual residence.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

[4] Voir http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf ainsi que http://www.legilux.public.lu/leg/a/archives/2014/0125/a125.pdf#page=1

3.4 May the right of custody be transferred to another person by means of a power of attorney?

No, but the provisions of Articles 387-1 and the following sections of the Civil Code[1] provide for the capacity to renounce parental authority (also see above), provided that the renunciation is not against the interests of the child. A judge has to be involved.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

4

Who has the general right of legal representation of a minor?

The right to represent a minor is part of the legal administration incumbent on the parents (see Article 389-3, subparagraph 1, and Article 389, subparagraph 1, of the Civil Code[1]). As a general rule (legitimate child), the legal administration is pure and simple (Article 389-1 of the Civil Code[2]). When this form of legal administration is exercised jointly by the father and mother, each can alone perform transactions of pure administration. For all other transactions, they have to act jointly (Article 389-5, subparagraph 1, of the Civil Code[3]).

In the case that another person holds that right, a distinction has to be made between the following cases :

(a) when the interests of the legal administrator are in conflict with those of the minor, the legal administrator has to ensure that the guardianship judge appoints an ad hoc administrator. In case the legal administrator fails to do so, the judge can make such an appointment at the request of the public ministry, the minor, or at his/her own initiative (see Article 393-3, subparagraph 2, of the Civil Code[4]) ;

(b) guardianship set up by the guardianship judge in case of legal administration under judicial control (Articles 389-2, 391, subparagraph 1, of the Civil Code[5]) ;

(c) guardianship set up by the guardianship judge in case of pure and simple legal administration on the grounds of serious misconduct, see Article 391, subparagraph 2, of the Civil Code[6].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[4] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[5] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[6] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

4.1 Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?

See above, question 3. As the right to represent a minor is part of parental authority (see Articles 389, subparagraph 1, 389-3, subparagraph 1, of the Civil Code[1]), the explanations in respect thereto apply.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

4.1.1 On who’s proposal and when the decision on appointment of a legal representative is made?

See above.

4.1.2 Is the competent authority free in its choice of a new legal representative?

No.

4.1.3 Can the right of legal representation belong to several persons? Is it possible to have different representatives for different areas?

Yes, under certain conditions, see above.

Is it possible to have different representatives for different areas?

See preceding question.

4.2 Are there any restrictions / extensions for the legal representative(s)?

4.2.1 Are there some areas in which the legal representative is not competent to act (e.g. drafting of a last will, entering into marriage)?

Yes, see above, Article 389-3 of the Civil Code[1].

Furthermore, Article 389-5, subparagraph 4, of the Civil Code[2] provides that the legal administrators are not allowed, not even jointly, to exchange, with or without payment, or transfer to a company any real estate or business owned by a minor, nor take out any loan in his/her name, nor waive any right on his/her behalf, without the consent of the guardianship judge. The sale of real estate and the division of property owned, wholly or partially, by a minor shall be done in accordance with the special provisions applicable to such matters.

Article 181, subparagraphs 3 to 5 of the amended law of 10 August 1915 on commercial companies[3] provides that the guardian of a minor is not allowed, without the prior consent of the family council, to intervene in the name of the minor in a limited company ; the legal administrators are not allowed, not even jointly, to use the minor’s property to participate in a limited company, without the prior consent of the guardianship judge ; the company, in which the minor or the persons having authority over him/her participates, is legal.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[2] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

[3] http://www.legilux.public.lu/leg/textescoordonnes/compilation/recueil_lois_speciales/Tome_6.pdf

4.2.2 Is there a connection between the right of custody and the representation rights (e.g. power of representation exists only in the areas of custody)? Would it be possible for both parents to have custody but for only one to have the right of representation in transactions with some property of a minor?

Yes, as a general rule the father and the mother are the legal administrators of the property of their non-emancipated minor children, whether the children are legitimate or natural (see Article 389, subparagraph 1, of the Civil Code).

Would it be possible that both parents have custody but only one has the right of representation in transactions with some property of a minor?
When legal administration is carried out jointly by the father and mother, each of them can alone perform transactions of pure administration. As regards all other transactions, they have to act jointly (Article 389-5, subparagraph 1, of the Civil Code).

4.2.3 Is it required that all legal representatives conclude transactions on behalf of the minor jointly (e.g. both parents) or may the transaction be concluded by one legal representative of the minor alone (e.g. one parent)?

See above, Article 389-5, subparagraph 1, of the Civil Code[1].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

4.2.3.1 Name the legal transactions (e.g. waiver of succession) the legal representative may perform on behalf of the minor if he/she is acting alone (e.g. one parent).

See the previous reply.
4.2.3.2 Name the legal transactions (e.g. waiver of succession) into which the legal representatives may enter on behalf of the minor only jointly (e.g. both parents).

See Article 389-5 of the Civil Code which provides :

“When the legal administration is exercised jointly by the father and mother, each of them can perform alone transactions of pure administration. As regards all other transactions, they have to act jointly.

For pure and simple administration, the two legal administrators acting together perform the transactions that a guardian would be able to perform with the consent of the family council.

In the absence of the father’s or the mother’s consent, the guardianship judge has to consent to the transaction.

The legal administrators are not allowed, not even jointly, to exchange, with or without payment, or transfer to a company any real estate or business owned by a minor, nor take out any loan in his/her name, nor waive any right on his/her behalf, without the consent of the guardianship judge. The sale of real estate and the division of property owned, wholly or partially, by a minor shall be done in accordance with the special provisions applicable to such matters.” [1].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf .

4.2.3.3 Would there be any difference on the requirement of joint representation in case the parents have never been married?

Yes, see Articles 389-5, subparagraph 2, and 389-6 of the Civil Code[1] : in the case of pure and simple legal administration, the two legal administrators acting together perform the transactions that a guardian would only be able to perform with the consent of the family council.

In the case of legal administration under judicial control (e.g. in the case of a natural child recognised by only one parent or by both), the administrator has to obtain the consent of the guardianship judge to perform those transactions, that a guardian would only be able to perform with the consent of the family council.

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf

4.2.4 Other restrictions for legal representatives:

4.2.4.1 Is it necessary that the transaction to be approved also by some other person or authority (e.g. parent, court or local government)? What are the formal requirements on the form of the approval?

See above.

4.2.4.2 Name the transactions that persons legally representing the minor may enter into only with the consent of a court or some other authority or person appointed by law.

In the case of pure and simple legal administration, see Articles 457, 459, 461, 464, subparagraph 3, 465, 467, 468 of the Civil Code. Likewise in case of legal administration under judicial control[1].

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T10_minorite_tutelle_emancipation.pdf .

4.2.4.3 In case of a mandatory approval of the transaction by another person (e.g. the other parent) or authority (e.g. court) is there any difference whether the approval is given before or after the transaction? What are the legal consequences for the transaction if the approval required by law is denied?

Consent is to be provided before the conclusion of the transaction.

What are the legal consequences for the transaction if the approval required by law will be denied?

The transaction would not be valid.

4.2.4.4 Are there certain cases in which the legal representatives shall not act (e.g. contract on behalf of the minor concluded with parent or family member)?

When the interests of the administrator are in conflict with those of the minor, the administrator has to ensure that the guardianship judge appoints an ad hoc administrator (Article 389-3, subparagraph 2, of the Civil Code).

4.3 Are there any other restrictions related to the rights of a minor (e.g. the right of succession) for the persons who have the right of custody or the right of legal representation of a minor in addition to the restrictions specified above?

See above

4.4 May the right of representation be transferred to another person by means of a power of attorney?

No. No renunciation or assignment of parental authority can have any effect, other than by virtue of a judgment in the cases set out by the law, and only if such renunciation or assignment is not against the child’s interests (Article 387-1 of the Civil Code[1]).

[1] http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L1_T9_autorite_parentale.pdf

5

How can the custodian / representative prove his/her right?

5.1 Does the law provide some kind of document, that gives evidence of the right of custody and/or representation?

No. Parents hold parental authority by virtue of the law. Other persons/bodies to whom parental authority may have been granted have either a judgment or a decree.

5.2 Is there any other kind of document, that proves the right of custody and/or representation?

No, but the birth certificate or the family record book can be used, as appropriate.

6

According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?

The persons holding parental authority.

6.1 What are the requirements for the formal validity of such a consent/permission/authorisation?

There are no provisions as to any specific form thereof.

At some point in life, it may be useful to get someone to help you with certain (administrative) tasks, such as making a payment or deciding on a purchase. It is also possible to leave these tasks entirely to someone else, due to illness or mental health problems. As soon as you are no longer able to look after your own interests fully, someone else can do it for you, so that, for example, you do not run the risk of missing payment deadlines.

This section contains information on the different types of protection that exist and explains how to anticipate possible future incapacity. The section is divided into several parts and by clicking on the subject of your choice, the relevant information is displayed.

Part 1

Protective measures for adults with loss of capacity

Part 2

The possibilities of anticipating a future loss of capacity

1. Protective measures for adults with diminished capacity

Part 1: Protective measures for adults with loss of capacity

The legal protection of adults whose personal faculties have been altered in such a way as to make it impossible for them to look after their interests alone is mainly governed by the provisions 488 and following of the Luxembourg Civil Code. An adult who, because of his or her prodigality, intemperance or idleness, exposes him or herself to falling into need or compromises the performance of his or her family obligations, may also be protected (Article 488 of the Civil Code).

Article 490 of the Civil Code provides that, when a person’s mental faculties are impaired by illness, infirmity or impairment due to age, that person may be subject to one of the three protection regimes provided for by law, depending on his or her needs for protection.

The three legal protection regimes are respectively the safeguard of justice (Articles 491 to 491-6 oof the Civil Code), guardianship (Articles 492 to 500 of the Civil Code) and curatorship (Articles 508 to 515 of the Civil Code).

Justice safeguard

The system of justice safeguar may be appropriate in the event that a vulnerable adult needs to be protected in acts of civil life (see Article 491 of the Civil Code).

The justice safeguard results from a declaration that must be made to the guardianship court, based in particular on a statement by a doctor according to which the person in question needs to be protected, which must be accompanied by the assent of a doctor specialising in neurology, neuropsychiatry, psychiatry, geriatrics, internal medicine or a general practitioner.

According to Article 491-2 of the Civil Code, an adult placed under justice safeguard retains the exercise of his or her rights. However, the acts they have performed and the commitments they have entered into may be rescinded, for example for simple injury (Article 491-2 of the Civil Code).

The justice safeguard ends with the expiry of the declaration or its cancellation by decision of the guardianship court. The application for cancellation may be made by any interested party. The justice safeguard also ceases by the opening of a guardianship or curatorship from the day the new protection regime takes effect (Article 491-6 of the Civil Code).

Guardianship regime

With regard to the guardianship regime, applicable to cases where an adult needs to be represented in a continuous manner in acts of civil life (see Article 492 of the Civil Code), its opening is pronounced by the guardianship court at the request of the person to be protected, his or her spouse (unless the community of life has ceased between them), his or her ascendants, descendants, brothers and sisters, the curator and the public prosecutor’s office. It may also be opened ex officio by the court (Article 493-1 of the Civil Code).

The impairment of the mental or bodily faculties of the person to be protected must be established by a specialist doctor, or by a general practitioner whose opinion must be complemented by a specialist doctor (see Article 493-1 of the Civil Code).

Once the guardianship is operational, one of the obligations of the guardian is to collect the income of the protected person and to allocate it for the maintenance and treatment of the protected person. Each year, the guardian reports directly to the guardianship court (see Article 500 of the Civil Code).

Acts passed by the protected person after the judgment to open guardianship – such as wills – are generally null and void by law (see Articles 502 and 504 of the Civil Code).

Earlier acts may be annulled if the cause which determined the opening of guardianship was known to exist at the time they were made (Article 503 of the Civil Code).

Furthermore, a person under guardianship cannot accept a succession. For the acceptance of successions under benefit of inventory, the intervention of the guardian is generally required. Restrictions also exist for the repudiation of a succession (see Art. 461 of the Civil Code).

Guardianship ceases with the causes which have determined it; a judgment of release is required to this effect (Article 507 of the Civil Code).

Curatorship

The third regime of legal protection, curatorship, can generally be opened when an adult needs to be advised or controlled in acts of civil life for one of the causes provided for in Article 490 of the Civil Code (see above).

The provisions relating to guardianship charges are in principle applicable to the office of curator, but important legal differences exist between the two regimes (see Article 509-2 of the Civil Code).

If the adult under curatorship has alone performed an act for which the assistance of the curator was required, he/she or the curator may request its annulment (Article 510-1 of the Civil Code).

When opening the curatorship or in a subsequent judgment, the court, on the advice of the attending doctor, may nevertheless list certain acts that the person under curatorship will be able to do alone or add other acts to those for which the assistance of the curator is required (Article 511 of the Civil Code)

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a) United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006

The Grand Duchy of Luxembourg signed this Convention on 30 March 2007. It was approved by the law of 28 July 2011.

b) Authority competent to appoint an official guardian/curator

The authority competent to appoint an official guardian/curator is the guardianship judge (see Articles 393 et seq. of the Civil Code).

The functions of the guardianship judge for adults who are protected by law are exercised by a judge of the youth court in whose jurisdiction the adult has his or her domicile (Art. 490-4 of the Civil Code).

c) Possibility of appointing several guardians/curators to deal with different areas of life (right of custody, administration of property)

According to Article 417 of the Civil Code, applicable in principle to the guardianship of adults (see Article 495 of the Civil Code), it is generally possible, under certain conditions, that a guardianship is divided between a guardian of the person and a guardian of the property, or that the management of certain specific property will be entrusted to a deputy guardian. The guardians so appointed will be independent, and not responsible to each other, in their respective functions, unless otherwise ordered by the family council.

d) Restrictions imposed on the curator/guardian and control exercised by the courts or by another authority for certain legal acts

a. In the context of a succession proceeding

i. Acceptance of the succession

ii. Waiver of the succession before/after death

iii. Division of the estate between the heirs

iv. Waiver of the right to the reserved share

v. Recognition of a creditor’s claim

With regard to the succession situations described above, the provisions of the Luxembourg Civil Code relating to the guardianship of adults explicitly regulate the following aspects: According to Articles 461 et seq. of the Civil Code, applicable in principle to the guardianship of adults (see Article 495 of the Civil Code), the guardian may only accept a succession with the benefit of an inventory. However, the family council may, by special resolution, authorise him/her to accept it purely and simply, if the assets manifestly exceed the liabilities. Furthermore, the guardian may not repudiate a succession without the authorisation of the family council. Moreover, the tutor may accept without authorisation donations and particular legacies, unless they are burdened with charges.

b. As part of an estate management

i. Sale/transfer of building

ii. Mortgage

In real estate law, with regard to the guardianship of adults, Article 457 of the Luxembourg Civil Code, applicable in principle to guardianship according to Article 495 of the Civil Code, stipulates that the guardian may not, without the authorisation of the family council, make acts of disposition. Without this authorisation, he/she may not, in particular, borrow, alienate or encumber with real rights immovable property, the business, securities and other intangible rights.

According to Article 459 of the Civil Code, the contribution of an immovable property into a company is authorised by the family council on the basis of a report by an expert appointed by the family court. Other securities are sold by public auction on a stock exchange. The family council may, however, on the basis of the report of an expert appointed by the family court, authorise the private sale of such securities at the prices and stipulations it determines.

iii. Act concerning a common property regime

iv. Sale/transfer of company.

v. Security.

As far as the above-mentioned aspects are concerned, it is worth recalling Article 457 of the Civil Code according to which the tutor cannot, without being authorised by the family council, make acts of disposition in the name of the adult under guardianship. Without this authorisation, he/she may not, in particular, borrow, alienate or encumber with real rights real estate, the business, securities and other intangible rights.

c. In other situations.

As an example, the following situations should be mentioned: A will made after the opening of the guardianship is legally null and void (Article 504 of the Civil Code). A will made previously remains valid, unless it is established that, since the opening of the guardianship, the cause which had determined the testator to dispose of the property has disappeared.

e) Recognition of decisions/acts relating to protection measures issued by the authorities of other Member States

There are no specific rules in Luxembourg law in this respect.

2. Possibility to anticipate a future loss of capacity

Part 2: The possibilities of anticipating a future loss of capacity

In Luxembourg law, there is no specific legal framework on the lasting powers of attorney.

With regard to life situations of a person who is no longer able to express his or her willingness to accept or refuse medical treatment, for example following an accident or illness, the specific legal framework applicable in this area can be summarised as follows:

The law of 16 March 2009 on palliative care, advance directives and end-of-life support (the Palliative Care Act) and the law of 16 March 2009 on euthanasia and assisted suicide (the Euthanasia Act) govern such situations

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a) Measures covered by advance decisions on medical treatment.

According to Article 5 paragraph 1 of the Palliative Care Act, the measures covered are determined in a document called “advance directives”. According to these provisions, anyone can express his or her end-of-life wishes, including conditions, limitation and halting of treatment, including psychological and spiritual support, for cases where the person is in an advanced or terminal phase of a serious, incurable illness, irrespective of the cause, and where the said person is no longer able to express his or her wishes.

According to Article 4 paragraph 1 of the Euthanasia Act, any adult with legal capacity may, in anticipation of a situation where he or she is no longer able to express his or her wishes, specify in writing in advance directives the circumstances and conditions under which he or she wants to be euthanized, if a doctor notes:

• that he or she is suffering from a serious and incurable injury or pathological condition,

• that he or she is unconscious,

• and that this situation is irreversible in accordance with the current state of science.

Advance directives may also include a specific section with instructions regarding the method of burial and the funeral ceremony.

b) Possible judicial review.

With regard to the advance directive, no specific judicial review is provided for. However, the treating doctor must, in accordance with Article 4, paragraph 3, sentence 2 of the Euthanasia Act, comply with the following formal and procedural conditions:

• Consult another doctor with regard to the irreversibility of the patient’s medical condition, while informing him or her of the reasons for the consultation. The doctor consulted is required to consult the patient’s medical records, examine him or her and then draw up a report containing his or her findings. If a trusted person is designated in the advance directives, the treating doctor must inform the trusted person of the results of the consultation. The doctor consulted must be impartial vis-à-vis both the patient and the treating doctor and be competent as regards the illness concerned.

• If a healthcare team is in regular contact with the patient, the treating doctor must discuss the content of the advance directives with the healthcare team or members of the team.

• If the advance directives designate a trusted person, the treating doctor must discuss the patient’s wishes with that person.

• If the advance directives designate a trusted person, the treating doctor must discuss the patient’s wishes with the patient’s close family members designated by the trusted person.

According to Article 5 of the same Act, a doctor who performs euthanasia or assisted suicide must file a duly completed registration document, within eight days, with the National Monitoring and Evaluation Commission.

According to Article 7 of the same Act, this document must contain the surname, given name and address of the patient and the treating doctor, as well as the surname, given name, doctor’s code and address of the doctor(s) who was/were consulted about the euthanasia or assisted suicide request, the surname, given name, address and capacity of all persons consulted by the treating doctor, as well as the dates of the said consultations and, whether advance directives existed and whether they designated a trusted person and, if applicable, the surname, given name and address of the trusted person(s) who participated in the procedure. Moreover, this document must contain, if applicable, the advance directives or a euthanasia or assisted suicide request as well as information on the patient’s health.

According to Article 6, paragraph 2 of the same Act, this Commission has nine members, appointed on the basis of their knowledge and experience in the areas which fall within the Commission’s competence. Three members are medical doctors. One member is nominated by the Medical College. The most representative organisation of doctors and dentists nominates two members, one of whom has specific qualifications and experience in the area of pain management.

Article 8 of the same Act stipulates that the Commission must examine the reporting document and check that the formal and procedural conditions specified in Article 2, paragraph 2 of the Euthanasia Act have been satisfied. If the Commission considers that these conditions have not been satisfied, it must notify its reasoned decision to the treating doctor and send the full file and a copy of the reasoned decision to the Medical College. The latter must reach a decision within one month. The Medical College must decide by a majority of its members whether there are grounds for disciplinary action. In the event of non-compliance with one of the conditions set out in paragraph 1 of Article 2 of the said Act, the Commission refers the case to the Public Prosecutors Office.

c) The binding nature of advance decisions on medical treatment for caregivers and for the patient’s trusted persons.

The treating doctor must take account of the advance directives in accordance with Article 6, paragraph 1 of the Palliative Care Act. In addition, Article 4, paragraph 2 of the Euthanasia Act stipulates that any doctor treating a patient in an end-of-life situation or a patient whose medical situation is hopeless must check with the National Monitoring and Evaluation Commission whether any advance directives in the patient’s name have been registered with it.

However, Article 15 of the Euthanasia Act clearly stipulates that no doctor is required to perform euthanasia or assisted suicide and that no other person can be required to participate in an act of euthanasia or assisted suicide. If the doctor consulted refuses to perform euthanasia or assisted suicide, he or she must inform the patient and/or the trusted person, if such a person has been designated, within 24 hours, specifying the reasons for his or her refusal. A doctor who refuses to perform euthanasia or assisted suicide must, at the request of the patient or the trusted person, transmit the patient’s medical records to the doctor designated by the latter or the trusted person.

d) Formal requirements for advance decisions.

Concerning formal requirements, it should be noted that according to Article 5, paragraph 4 of the Palliative Care Act advance directives must be drawn up in writing, dated and signed by their author. If the author of such directives, despite still having the capacity to express his or her wishes, is unable to write and sign the document himself or herself, he or she may request two witnesses to attest that the document which he or she has been unable to draw up himself or herself is the informed expression of his or her wishes. The witnesses must indicate their name and capacity and their attestation is attached to the advance directives in accordance with Article 5, paragraph 2 of the same Act.

According to Article 4, paragraph 1 of the Euthanasia Act, advance directives must be drawn up in writing, dated and signed by the author. According to paragraph 1 of the same article, if the person who wants to issue advance directives is unable, because of a permanent physical disability, to draw up and sign them, his or her advance directives may be written by an adult of his or her choosing. The advance directives have to be drawn up in the presence of two witnesses who must be adults. In such a case the advance directives must specify that the author was unable to draft and sign them himself or herself and specify the reasons. The advance directives must be dated and signed by the person who wrote them, by the witnesses and, if applicable, by the trusted person. A medical certificate attesting to this permanent physical incapacity is attached to the advance directives.

e) Recording of advance directives in the register.

There is no obligation of entry in a register for advance directives. Article 8 of the Palliative Care Act specifies that a Grand-Duchy regulation may provide for the creation of a central register of advance directives, but no such regulation has yet been adopted. According to Article 7, sentences 2, 3 and 4 of the Palliative Care Act, the author of the advance directives may transmit the said directives himself or herself, when hospitalised, to the medical or nursing staff. If the advance directives have been transmitted to another person for safekeeping by the person in an end-of-life situation and the former becomes aware of the advanced or terminal phase of a serious, incurable illness, whatever the cause, affecting the latter, he or she must transmit the said advance directives to the medical staff caring for the person in an end-of-life situation. In all cases, the advance directives are attached to the medical records or, as applicable, the care file.

On the other hand, advance directives have to be registered with the National Monitoring and Evaluation Commission (Article 4, paragraph 2 of the Euthanasia Act) within the framework of an official system for the systematic registration of advance directives.

f) Cases of conflict between the end-of-life mandate and the declared patient’s willingness in another context to donate his or her organs.

There are currently no specific rules in this respect.

g) Situations with cross-border element:

a. Substantive law applicable to end-of-life mandates.

There are no specific rules in this respect.

b. The Hague Convention of 13 January 2000 on the International Protection of Adults

In 2008, the Grand Duchy of Luxembourg signed the Hague Convention of 13 January 2000 on the International Protection of Adults.

c. Conditions of foreign end-of-life mandates to produce effects in your Member State

Specific rules on the recognition of advance directives or end-of-life provisions of foreign origin do not exist in Luxembourg. The same applies to possible conflicts of law as well as to conflicts between the end-of-life provisions outlined above and the patient’s wish to donate his or her organs after death.

More informations

Chambre des Notaires du Grand-Duché de Luxembourg : 53, boulevard Joseph II, L – 1840 Luxembourg, Luxembourg

Tel.: +352 – 44 70 21
chambre.des.notaires@online.lu

Fax: +352 – 45 51 40
www.notariat.lu

The Vulnerable in Luxembourg

1 Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

2 Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

3 Who has the general right of custody of a minor?

4 Who has the general right of legal representation of a minor?

5 How can the custodian / representative prove his/her right?

6 According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?

1. Protective measures for adults with diminished capacity

2. Possibility to anticipate a future loss of capacity

More informations

_Data protection

1

Is your country party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which was concluded on 19 October 1996? If so, at what date did it enter into force?

2

Up to what age is a person considered to be a minor? Are there different levels of legal capacity for minors (e.g. limited legal capacity)?

3

Who has the general right of custody of a minor?

4

Who has the general right of legal representation of a minor?

5

How can the custodian / representative prove his/her right?

6

According to the national law, who is responsible for giving consent/permission/authorisation for a minor child to travel abroad, in the event both parents are not travelling with the child (e.g. one parent, both parents, the guardian, institution, please specify)?