Conservatorship: Judicial View and Court Process

conservatorship

Every legal subject who is an adult can basically perform legal actions, unless otherwise stipulated by laws and regulations or agreements. However, it should be noted that not all legal subjects have the competency to perform legal actions (rechtsbekwaamheid) as regulated in the laws. Article 1329 of the Civil Code states that:

“Each individual shall be authorized to conclude agreements, unless he has been declared incompetent by law.”

 (Een ieder is bevoeg om verbintenissen aan te gaan, indien hij daartoe door de wet niet onbekwaam is verklaard.)

 Based on Article 1330 of the Civil Code it is said that legal subjects who do not have the competency to carry out legal actions include minors (minderjarig) and individuals under conservatorship (curatele). 

Conservatorship (curatele) is a legal protection for an adult by placing him in the same way as minors, where that person must be under protection and supervision. In this case, the adult in question is a person who is legally competent, namely someone who has reached the age of 21 (twenty one) or has been married. As regulated in Article 330 of the Civil Code, as follows:

“Minors are those who have not reached the full age of twenty one years and who have not previously entered into matrimony. If a marriage is dissolved prior to the spouses having reached the full age of twenty one years, they shall not regain the status of a minor.”

In the law there are further provisions regarding special conditions for a person who must receive conservatorship. According to Articles 433 and 434 of the Civil Code, there are 5 (five) conditions in which an adult must remain under conservatorship, i.e.:

1. If the adult is in a continuous state of simple-mindedness, which according to accordance with the Great Dictionary of the Indonesian Language means: slow-witted, not intelligent, dumb, stupid;
2. State of insanity, which according to Great Dictionary of the Indonesian Language means: memory illness (memory disorder), mental illness (mental disorder nerves or abnormal thoughts);
3. State of rage, which according to Great Dictionary of the Indonesian Language means: a state of being so angry that one becomes lost and goes berserk;
4. Improvidence, which according to Great Dictionary of the Indonesian Language means: excessive use of money, goods, and so on; or
5. Limited mental capacity. 

According to the law, an adult with the above conditions can be said to be a person who is 'incompetent' to carry out legal actions, so that person shall be placed under conservatorship notwithstanding that he might have mental capacity from time to time. This is of course to avoid matters that can be detrimental to him. Thus, civil law in Indonesia provides protection by regulating this conservatorship. 

Please note that not everyone is authorized to request conservatorship of a person who deserves to be under conservatorship. This is because there are provisions regulated in the Civil Code regarding the parties are who can apply as conservator. For people with simple-mindedness, insanity or rage, conservatorship can be requested by each blood relative, while for people who are improvident, conservatorship can only be requested by the blood relatives in direct line (ascending line: father, mother; descending line: children, grandchildren, great-grandchildren) and a collateral line up to the fourth degree (collateral line: older sibling, younger sibling, aunt). In fact an individual may himself request to be placed under conservatorship if he feels unable to take proper care of his affairs due to limited mental capacity (Article 434 of the Civil Code). Due to one or more reasons, one spouse may request to put the other under conservatorship, even though one spouse shall be appointed as conservator over the other spouse automatically without requiring further assistance or authorization (Article 451 of the Civil Code). Moreover, if, in the case of rage, conservatorship not requested by the individuals mentioned above, then the prosecution counsel shall be obligated to do so. In the case of simple-mindedness or insanity, conservatorship may be requested by the prosecution counsel in respect of an individual who does not have a spouse, or known blood relatives within Indonesia (Article 435 of the Civil Code). 

Furthermore, if a person has complied with the provisions in accordance with the Civil Code as a conservator of a person under conservatorship, then such person can file the request for conservatorship with the District Court where the individual in respect of whom such conservatorship is requested is domiciled. This is in accordance with Article 436 of the Civil Code which states that:

“All requests for conservatorship shall be filed with the court of justice within whose legal jurisdiction the individual in respect of whom such conservatorship is requested is domiciled.” 

The following more clearly describes the procedure for submitting a request for conservatorship:

1. The Petitioner must submit a request for conservatorship which include the events and evidence, and mention the witnesses, showing that the respondent fulfills one of the conditions as referred to in Article 433 of the Civil Code (Article 437 of the Civil Code);
2.  The court will conduct an examination by properly summoning the blood relatives or relatives by marriage if the events are sufficiently significant to lead to a conservatorship (Article 438 of the Civil Code);
3. Then, it is obligatory to notify the letter of request and the report containing the views of the blood relatives (Article 439 of the Civil Code);
4. The court must then question and hear the respondent. This process can be done by summons and if the respondent is immobile, the judge, registrar, and the prosecution counsel will conduct a questioning at the respondent's residence. If the respondent is located more than ten poles from the District Court where the request for conservatorship is filed, the questioning may be assigned to the head of the local government (not attended by the prosecution counsel). In this case, minutes must be drawn up, an authentic copy of which is submitted to the District Court where the request for conservatorship is filed. (Article 439 of the Civil Code). In the case of insanity, then the court does not need to question and hear the respondent. It is sufficient to only hear statements from the blood relatives of the respondent;
5. At this stage, the District Court may nominate a provisional administrator to take care of the respondent's personal matters and assets if deemed necessary (Article 441 of the Civil Code);
6. If after process 1 (one) to 4 (four) the District Court decides that it has been adequately informed, then the court may render a judgment on the request for conservatorship, otherwise, the District Court will summon the witnesses to clarify the matters presented by the petitioner (Article 440 of the Civil Code);
7. After that, the District Court will render a judgment or a decree on the request for conservatorship. This judgment or decree must be read out in a public court hearing and notified to the opposing party and made public by publication in the state gazette (Articles 442 and 444 of the Civil Code). 

When the District Court renders a judgment or decree on conservatorship, then the individual under conservatorship or curandus is deemed to be of equal status to a minor, so that all his legal actions must be represented by the conservator or curator (Article 452 of the Civil Code). This includes the right to enter into an agreement on behalf of the person under conservatorship (Article 458 of the Civil Code), using his income to expedite his recovery (Article 454 of the Civil Code), and other legal actions.

• Can a Conservator (Curator) be replaced?

On a court decree that has become final and binding (in kracht van gewijsde), what if things happen that make a conservator no longer able to take care of all the affairs of the person under conservatorship? For example, if the conservator has to serve his country abroad for a long time or if the conservator has a preoccupation that was previously non-existent, which could have dire consequences for the interests of the person under conservatorship, can the conservator be released and then replaced? Related to this, it can be explained that the release of the conservator can be carried out in 2 (two) ways, i.e. first, by submitting a request for release as conservator and second, by filing a third party lawsuit against the conservator. 

In the case of a request for release as conservator, this can be done if the conservator is no longer able to take care of the interests of the person under conservatorship due to a new situation. For example, if the conservator has to serve his country outside Indonesia, suffers from a severe illness or infirmity. (Article 377 jo. Article 452 of the Civil Code). However, it should be noted that this request can only be submitted by the conservator who is the spouse or blood relative in the ascending or descending line of the person under conservatorship. If the conservator is a blood relative in the collateral line of the person under conservatorship, then a request for release can only be submitted after he has carried out the conservatorship for 8 (eight) years (Article 459 of the Civil Code) or if the conservator has not performed the conservatorship for 8 (eight) years but there are circumstances or certain conditions that make the conservator unable to carry out the conservatorship properly, the interested parties (who still have blood relation) can file a lawsuit with the District Court. Or this can be submitted at any time if the family considers that the conservator has done things that are legally wrong or there are new circumstances that can harm the person under conservatorship. For example, if the conservator has bad conduct, abuses his authority, or neglects his duties as conservator. (Article 380 of the Civil Code). 

Thus, it can be said that conservatorship (curatele) is mandatory when an adult is considered incompetent to carry out legal actions. In this case, a request for conservatorship should be submitted by the authorized party according to the law to the District Court where the person in respect of whom such conservatorship is requested (curandus) is domiciled, and if for one reason or another a conservator does not carry out/can no longer carry out his duties, then the law regulates the procedure for replacing the conservator (curator).

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