Two Mandatory Baseline Protections
Articles 426 and 427 of the Civil Code establish two rules that sit at the foundation of every adult protection regime in France. They apply from the moment a protective measure opens — or a mandat de protection future takes effect — and they cannot be contracted around, excluded by the instrument granting the protection, or overridden without specific judicial authorisation (C. civ. Art. 490 by reference).
The Home Protection Rule
What Is Protected and Who Is Covered
The protection applies regardless of the specific regime in place — judicial measure or mandat de protection future — and regardless of whether the person is an owner or a tenant (C. civ. Art. 426 al. 1). What must be preserved at the person's disposal for as long as possible is their principal residence, any secondary residence, and all furniture contained in them. While it is in force, the only permissible arrangement over the home without court authorisation is a convention de jouissance précaire — a precarious occupancy arrangement that must end as soon as the protected person returns to their home (C. civ. Art. 426 al. 2).
Selling the Home, Letting It, or Terminating the Lease: Court Authorisation Required
Any act that goes beyond a precarious arrangement — selling the home or its contents, entering a standard tenancy as landlord, or terminating the person's own tenancy as tenant — requires the prior authorisation of the juge des tutelles or of the conseil de famille if one has been constituted (C. civ. Art. 426 al. 3). This requirement is universal: it applies to the tuteur, the curateur, the habilitated family member, and the mandataire de protection future equally. Even a person with a general habilitation — who can carry out most onerous disposition acts without court authorisation — cannot sell or let the protected person's residence without the judicial gate.
Moving to a Care Home or Institution: The Independent Medical Opinion Requirement
Where the purpose of an act affecting the home is to move the protected person into a care establishment, the court must first obtain the opinion of a doctor who neither works at nor holds any position in that establishment (C. civ. Art. 426 al. 3). This rule prevents conflicts of interest — a care home cannot participate in medical assessments that lead directly to a decision committing the person to that home.
The process for moving a protected adult to a care establishment follows a defined sequence. First, the tuteur, habilitated person, or mandataire must petition the juge des tutelles. The court then seeks the opinion of an independent doctor — not employed by or otherwise connected to the intended facility. Only once that opinion is obtained and the court has granted authorisation can the decision be lawfully carried out. A family that moves a parent into a care home and sells or lets the previous residence without following this process risks acting unlawfully, even with the best intentions. The home protection rule is not a formality — it is an enforceable limitation.
Personal Mementos and Cherished Objects: Always Preserved
Even where the home has been sold, let, or the tenancy terminated with court authorisation, the law imposes one further protection that is absolute: the protected person's personal mementos and objects of personal significance must always be kept available to them (C. civ. Art. 426 al. 3). If necessary, the establishment in which the person is housed must arrange for the storage and availability of these objects. No commercial logic overrides this — the person's connection to their personal and family history is treated as a non-negotiable interest.
What the Home Protection Does Not Cover
The home protection preserves the person's rights over their home — it does not exempt them from the financial obligations that come with it. A protected tenant who fails to pay rent remains subject to lease termination for non-payment under ordinary law. A protected person occupying a property without legal title can be evicted in the ordinary way. The protection preserves access; it does not guarantee it at someone else's expense.
The Banking Protection Rules
The Foundational Rule: Existing Accounts Must Be Maintained
When a protective measure opens, the person charged with protection must maintain all accounts and savings passbooks that were already open in the protected person's name before the measure began (C. civ. Art. 427 al. 1). They cannot open accounts at new financial institutions without prior judicial authorisation. Two exceptions to the account-continuity rule exist, both requiring judicial sanction: where the protected person's interests require it, the court can authorise opening an account at a new institution or closing one already open (C. civ. Art. 427 al. 2); or an account can be opened at the Caisse des dépôts et consignations as an additional safeguard (C. civ. Art. 427 al. 3). Where the protected person has no account at all, one must be opened for them — this first account does not require judicial authorisation (C. civ. Art. 427 al. 4).
The 2019 Reform: Account Modifications Without Authorisation
The justice reform of 23 March 2019 removed the prior authorisation requirement for three specific banking operations. The tuteur can now carry out the following without petitioning the court: modifying accounts already in the person's name, closing accounts opened during the tutelle itself, and opening a new account at the person's habitual bank (C. civ. Art. 427 al. 1 as amended by Loi 2019-222). These simplifications apply within the existing banking relationship — moving to a new institution still requires judicial authorisation.
The Habilitation Familiale Difference
The habilitation familiale operates under a notably more flexible rule. The habilitated person can — unless the court specifically restricts this — close accounts opened before the measure began and open new accounts at a different financial institution without any prior authorisation (C. civ. Art. 494-7). This deliberate derogation from the general Art. 427 rule acknowledges the lighter-touch, family-managed nature of the habilitation.
All Operations Through the Person's Own Named Accounts
The core operational rule — applicable to all measures and the mandat de protection future alike — is that every banking transaction must be carried out exclusively through accounts held in the protected person's own name (C. civ. Art. 427 al. 5). Collection of income, payment of expenses, and all patrimonial management operations must flow through these accounts. No financial operation may be conducted through the protective person's own account, through a shared account, or through any pooled vehicle.
The 2019 Extension to Healthcare and Social Establishments
Before the 2019 reform, the requirement to conduct operations through individual named accounts technically applied only to the person charged with the protective measure — not to establishments managing residents' finances under their own internal accounting systems. The law of 23 March 2019 explicitly extended Article 427 al. 5 to staff of healthcare establishments, social establishments, and medico-social establishments (C. civ. Art. 427 al. 5 as amended by Loi 2019-222). A care home, psychiatric facility, or disability service that previously managed residents' funds in a pooled internal account can no longer do so lawfully. Every resident's finances must be operated through accounts in that individual's own name.
The Compte Pivot Prohibition
The prohibition on pooling has a specific named target: the compte pivot. This practice — previously used by some professional tutelle organisations — maintained a single account for all the protected persons under management, generating income (through interest or investment returns on the pooled balance) that was retained by the organisation rather than credited to the individual residents. This practice is now categorically prohibited. Every individual protected person's financial flows must be managed through accounts in their own name, and all income and gains on those funds must revert to them (C. civ. Art. 427 al. 6).
All Investment Revenues and Capital Gains Belong Exclusively to the Protected Person
All revenues and capital gains generated by the protected person's funds and securities must in all circumstances revert exclusively to that person (C. civ. Art. 427 al. 6). There are no exceptions, no fee carve-outs drawn from investment returns, and no professional margin on portfolio performance that can be retained by the protective person or managing institution. The person's assets work entirely for that person.
The Tutelle's Additional Layer: Capital Must Be Paid Directly to the Person's Own Account
Under a tutelle specifically, there is an additional and stricter rule for incoming capital: any capital payable to the protected person must be paid directly by the debtor into an account opened exclusively in the person's name and flagged as subject to the tutelle (C. civ. Art. 498). The debtor cannot pay to the tuteur's account, even temporarily. There is no possibility of the capital transiting through any intermediary account — individualisation of the payment itself is mandatory.
Who Is Bound by These Rules
| Rule | Tuteur | Curateur | Habilitated person | Mandataire de protection future | Care home / establishment staff |
|---|---|---|---|---|---|
| Home must be kept available (Art. 426 al. 1) | ✓ | ✓ | ✓ | ✓ | — |
| Selling / letting home needs court auth. (Art. 426 al. 3) | ✓ | ✓ | ✓ | ✓ | — |
| Care home move needs independent doctor (Art. 426 al. 3) | ✓ | ✓ | ✓ | ✓ | — |
| Maintain pre-existing accounts; no new accounts without auth. (Art. 427 al. 1) | ✓ | ✓ | Relaxed — can open/close at new bank without auth. (Art. 494-7) | ✓ | — |
| All operations through person's own named accounts (Art. 427 al. 5) | ✓ | ✓ | ✓ | ✓ | ✓ (since 2019) |
| Compte pivot prohibited (Art. 427 al. 5) | ✓ | ✓ | ✓ | ✓ | ✓ (since 2019) |
| All revenues and gains revert exclusively to person (Art. 427 al. 6) | ✓ | ✓ | ✓ | ✓ | ✓ (since 2019) |
| Capital paid directly to tutelle-flagged account (Art. 498) | ✓ (tutelle only) | — | — | — | — |
Before proceeding with any transaction involving a protected person's home — sale, lease, mortgage, usufruct grant, or termination of tenancy — verify that court authorisation has been obtained under Article 426. The requirement applies regardless of the type of measure in place. Where the transaction involves a move to a care establishment, the additional independent medical opinion requirement must also have been satisfied. A transaction completed without these authorisations is exposed to nullity proceedings. There is no exception for transactions that appear commercially reasonable — the judicial gate is mandatory and cannot be substituted by family consensus.
A bank dealing with the account of a person under a protective measure should verify whether instructions to transfer funds, open new accounts, or close existing ones have been authorised. Under the general rule, no new accounts may be opened at a new institution without judicial authorisation — the exception is the habilitation familiale, where the habilitated person has a statutory right to open accounts at a different bank without court sanction. Instructions to route a protected person's funds through a third party's account, regardless of how they are framed, are contrary to Article 427 al. 5. Since 2019, the same scrutiny applies to accounts managed by care establishments on behalf of their residents.
Whether you need to sell a protected person's home, restructure their banking arrangements, or understand what a care home can and cannot do with a resident's funds, our guides cover the complete French adult protection framework.
Book a ConsultationThis article is provided for general information and educational purposes only. It does not constitute legal advice. The application of Articles 426 and 427 of the Civil Code depends on the specific facts of each situation — the type of protective measure in place, the nature of the transaction, and the specific characteristics of the property or accounts involved. Always seek advice from a qualified French notary or lawyer before carrying out any transaction affecting a protected person's home or financial accounts.
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Key Legal References
Home protection rule: protected person’s principal residence, secondary residence, and all furniture within them must be kept available to them for as long as possible; applies regardless of protective measure and regardless of whether person is owner or tenant; only permissible arrangement without court authorisation: precarious occupancy (convention de jouissance précaire) terminating on person’s return
Selling the home, letting it, or terminating the person’s tenancy all require prior authorisation of the juge des tutelles or conseil de famille; applies to tuteur, curateur, habilitated person, and mandataire de protection future equally; care home move additionally requires opinion of independent doctor not working at or connected to that establishment; personal mementos and objects of personal significance must always be preserved and kept available regardless
Banking rule: protective person must maintain all pre-existing accounts in person’s name; cannot open accounts at new institutions without prior judicial authorisation; exceptions: court authorisation to open/close; Caisse des dépôts account if court deems necessary; where no account exists, opening first account is an administration act not requiring authorisation. 2019 reform: tuteur may now without authorisation modify accounts already in person’s name, close accounts opened during tutelle, open new account at person’s habitual bank
All banking operations must be conducted exclusively through accounts held in the protected person’s own name; no pooling permitted; extended by 2019 reform to staff of healthcare establishments, social establishments, and medico-social establishments; compte pivot (single pooled account for multiple protected persons) categorically prohibited
All revenues and capital gains generated by the protected person’s funds and securities must in all circumstances revert exclusively to that person; no fee carve-outs from investment returns, no institutional margin on portfolio performance; applies to all protective measures and since 2019 to care establishment staff
Habilitation familiale exception to account continuity rule: habilitated person may close accounts opened before the measure began and open new accounts at a different financial institution without prior court authorisation, unless court specifically restricts this
Tutelle-specific capital rule: any capital payable to the protected person must be paid directly by the debtor into an account opened exclusively in the person’s name and flagged as subject to the tutelle; no transit through tuteur’s account permitted, even temporarily
Universal application: home and banking protection rules apply regardless of the form of the mandat de protection future; mandatory baseline protections that no instruction or arrangement can displace
2019 justice reform extending Art. 427 banking rules to care establishment staff and simplifying account modification procedures for tuteurs
