An important measure to protect incapacitated individuals

A necessary introduction

As the average age of our population increases and progressive neurological, psychiatric, or age-related pathologies develop, the Italian legal code has imposed a new, unique measure of protection for fragile individuals, guaranteeing the least possible limitation on their ability to act. This role, named amministrazione di sostegno, is a very flexible, adaptable tool that can give these subjects a system of protection, to represent them and help them to maintain their residual capacities, while maintaining the centrality of their self-worth. Because of the flexibility and rapidity with which this can be implemented, this measure has taken the place of the obsolete and cumbersome institutions of interdiction and curatorship.

The present article concerns the Italian regulation of the amministrazione di sostegno, notwithstanding the fact that, depending on the nationality of the person subject to administration, the Italian judge must in some cases apply the law of the country of origin (for example, English law if the person is a British citizen). Obviously, only by carefully examining single cases can the law be correctly applied for each individual. Often the law of the foreign country willrefer back to Italian law, in this way making it fully applicable.

For whom is the administration of support intended?

Article 404 of the Civil Code expressly provides that the administration of support, as a protective measure, can be applied on behalf of those who because of an infirmity or a physical or mental impairment, even partial or temporary, find it impossible to provide for their own interests.

It is a measure taken by the tutelary judge of the tribunal where the person to be administrated has their residence or domicile.

Who can propose this?

The remedy of instituting the administration of support can be proposed by the beneficiaries themselves, even if they are minors, or by those indicated in the Civil Code (spouse, co-habiting partner, relatives up to the fourth degree, or in-laws to the second degree). This can also be proposed by the public prosecutor and, when there are no near relatives, in urgent cases, by heads of health and social services directly responsible for the care and assistance to the person, whenever they become aware of situations that make it appropriate to open a procedure of administration of support.

How is an administrator of support appointed?

The procedure that leads to naming the administrator of support is carried out by way of an appeal deposited at the office of the competent tribunal. Following this appeal, the tutelary judge orders a court hearing where the beneficiary in person will be heard and where the judge will attentively weigh the interests and requirements for protection of the person, their needs, and their requests. It is useful, even in the phase of reporting the introductory appeal, that appropriate medical documentation confirming the necessity of the appointment be attached. Therefore, relevant reports of hospitalization for possible pathologies, as well as a medical certificate from a general physician or a specialist, are especially useful.

At the hearing, the tutelary judge questions the beneficiary directly, in order to specifically determine the needs of the perspective supervision. The judge, in other words, should be quite sure that the person is not able to manage their own interests, and, as such needs an assistance that clearly limits their own ability to act. In fact, if the judge finds that the documentation produced is insufficient or decides that further medical assessments are needed, the judge will nominate a court appointed technical consultant to protect the interests of the person.

Who can be nominated as the administrator of support?

Article 408 of the Civil Code expressly indicates the individuals who can fill the role administrator of support. Given that the choice should happen with exclusive concern for the care and the interest of the subject beneficiary, the tutelary judge, whenever possible, prefers the non-separated spouse or the co-habiting partner, or also father, mother, son, brother, sister, even relatives up to the fourth degree. If there are serious reasons (for example, conflicts among family members regarding the appointment of the administrator or the impossibility of relatives to manage the needs of the beneficiaries) the judge can choose a professional (lawyer) inscribed in a special list of the tribunal.

The powers of the administrator of support (a.d.s.) …

The appointed administrator, whether this person is a relative or not, sees their own power clearly determined in the decree of the tribunal (so-called decreto di nomina, appointment decree).

Essentially, the powers of the administrator of support are solely those indicated in the appointment decree, which, for these reasons, is generally very exhaustive and detailed.

The a.d.s. can therefore represent the beneficiary in their personal and patrimonial relationships, for example, while respecting the individual’s desires, choosing the place to live, obtaining the health approval where necessary, managing the bank accounts of the person administrated, establishing relationships with the public administration, and with possible employees (for example care-givers), stipulating the relevant contracts and making economic arrangements, also representing the subject in terms of financial administration. 

For some acts (for example, extraordinary administration, disposition deeds, legal representation) the administrator of support should ask and obtain prior authorization from the tutelary judge.

… and their duties

The a.d.s. has a fundamental role in the protection of the individual inasmuch as they are incapable of looking after their own interests. Precisely because of the motivation for the measure, according to some recent decisions of the Court of Cassation, the a.d.s. assumes the role of public official, in that they are auxiliary to the tutelary judge for the person. They must therefore proceed to an inventory of all goods within 30 days of their appointment, drawing up a special report arranged by the tribunal, and at the end of each year draft a report with precise indication of the individual’s health conditions, of the acts carried out on their behalf, and of all the income and expenses, with the requirement of attaching appropriate supportive accounting documentation (bank statements, etc.)

Precisely because they cover the role of public official, the failure to respect the obligations can have penal relevance. The a.d.s., for example, is in fact not authorized to appropriate, for any reason, the personal property of the administrated for personal aims or interests, for which they would then have to answer for serious crimes such as embezzlement, identified and punished by article 314 of the penal code, or abuse of office.

Do the administrated retain their own capacity?

Yes, absolutely, the beneficiary retains the capacity to act for all the actions that do not call for the exclusive representation or assistance necessary from the administrator of support. For example, they can carry out so-called highly-personal actions, to contract marriage (in this case it is however opportune to notify the tribunal), or to draft a will.

Is the administrator of support free?

The appointment tends to be free, precisely in light of the moral and social relevance of this work. Still, the tutelary judge, taking into consideration the total patrimony of the beneficiary and the difficulty and commitment of the administration, can liquidate in favor of the administration an equitable indemnity, which should be requested at the moment of filing the annual report with a specific application. Since there are no objective and univocal criteria for establishing the amount of indemnity (in the past left solely to the judge’s discretion), in 2021 a protocol was introduced by the Tribunal of Lucca, which fully indicates the amount of indemnity due, in relation to the economic situation of the administrated and the activity to be carried out by the administrator of support.

The importance and the ever-increasing role of the administrator of support

I am personally very convinced of the role of administrator of support and of the importance of this measure, which gives specific, flexible, and modern support to persons who find themselves in conditions of fragility and who therefore need concrete help. In many cases, we are talking about persons who are elderly, alone, uncomfortable in an increasingly frenetic world, impervious to their concrete needs. Over these years I have personally followed various appeals for the appointment of a.d.s., and currently represent several administrated individuals, holding the role of administrator of support at the Tribunal of Lucca.

I remain available for any information you would like to request. A first consultation is free.

— by Avv. Luca Trinchera