2 Private Law - Civil Procedure - Enforcement - 21 Supplementary and Enforcement Provisions of the Civil Code - 213 Family Law - Chapter One Objectives (KESG)

1. The purpose of this law is to designate the authorities for the protection of children and adults in accordance with federal legislation.

2. It establishes the cantonal supplementary provisions in relation to the federal law on the protection of children and adults.

3. It regulates the procedure before the authorities for the protection of children and adults, insofar as it is not already governed by Articles 443 to 450f of the Civil Code or by the Code of Civil Procedure (CCP) of December 19, 2008 [2].

4. It regulates the procedure concerning placement for care purposes, insofar as it is not already governed by Articles 426 to 439 of the Civil Code or by the CCP.

1. The Child and Adult Protection Authority is a section of the District Court.

2. It is an interdisciplinary authority.

3. It is presided over by a judge.

1 The Child and Adult Protection Authority makes decisions composed of its president and two members.

2 The president designates two members based on their competencies according to the requirements of the case.

Members of the Child and Adult Protection Authority must possess expertise in medical, psychological, social, or educational matters, or in accounting or actuarial fields, as well as in asset management and social insurance.

1. The following individuals may be appointed as members of the Child and Adult Protection Authority

a) those of Swiss nationality or who hold a settlement permit;

b) those under 70 years of age and enjoying civil rights; and

c) those who have, in principle, been domiciled in the canton for at least one year, or, for individuals holding a settlement permit, for at least five years.

2. They are deemed to have resigned when they no longer fulfill the conditions of their appointment.

The members of the Child and Adult Protection Authority are appointed for the term of office of the judicial authorities.

1. Upon taking office, the members of the Child and Adult Protection Authority shall take the following oath before the Judicial Council

"I solemnly swear to strictly observe the Constitution and the laws and to faithfully and conscientiously perform the duties of my office."

2. Upon being called by name, each member of the Child and Adult Protection Authority raises their hand and says

"I so affirm" or "I swear" or "I swear before God."

The Council of State determines the compensation for the members of the Authority for the Protection of Children and Adults according to the principles applicable to the remuneration of members of administrative commissions.

**Until the Entry into Force of the Special Law Provided for in Article 8, Paragraph 1, of the Neuchâtel Judicial Organization Law (OJN), of January 27, 2010**

Until the special law provided for in Article 8, paragraph 1, of the Neuchâtel Judicial Organization Law (OJN), of January 27, 2010, comes into force, the members of the Child and Adult Protection Authority shall sit in the two Regional Courts defined in Article 98a OJN.

The Child and Adult Protection Authority is the competent authority in matters of appeal to the judge (Art. 439 CC).

The President of the Child and Adult Protection Authority is competent to take the necessary provisional measures for the duration of the procedure (Art. 445 CC, Art. 314, para. 1, CC).

In matters pertaining to family law, the president of the Child and Adult Protection Authority is competent to

a) submit a request for modification of parental authority in the case of new facts (art. 134, para. 1 CC);

b) approve the agreement regarding child maintenance contribution in cases where the parents agree (art. 134, para. 3 and 287 CC);

c) amend the allocation of parental authority in case of parental agreement (art. 134, para. 3 CC);

d) consent to the adoption of a child under guardianship (art. 265, para. 3 CC);

e) receive the consent of the father and mother for the adoption (art. 265a, para. 2 CC);

f) approve the parents' agreement concerning child maintenance by payment of a one-time indemnity (art. 288, para. 2, sec. 1 CC);

g) transfer parental authority to the other parent upon joint request (art. 298, para. 3 CC);

h) grant joint parental authority upon a joint request by the parents (art. 298a, para. 1 CC);

i) explicitly invite the parents to attempt mediation (art. 314, para. 2 CC);

j) designate a curator (art. 314a bis CC);

k) request the submission of the child's estate inventory after the death of one of the parents (art. 318, para. 2 CC);

l) order the establishment of an inventory or the periodic submission of accounts and reports (art. 318, para. 3 CC);

m) authorize withdrawals from the child's assets (art. 320, para. 2 CC);

n) compel third parties to periodically submit a report and accounts (art. 322, para. 2 CC);

o) grant exemptions within the framework of guardianship entrusted to relatives (327c, para. 2 and 420 CC).

p) request the institution of a guardianship to represent the child in divorce proceedings (art. 299, para. 2, letter b CPC).

**In matters of adult protection, the President of the Child and Adult Protection Authority is competent to:**

a) ascertain the existence of a power of attorney for the event of incapacity, examine it, and inform the attorney of their duties (Art. 363 CC);

b) interpret and supplement the power of attorney for the event of incapacity (Art. 364 CC);

c) receive the termination of the power of attorney for the event of incapacity (Art. 367 CC);

d) intervene when the interests of the person benefiting from a prior personal measure or an automatically applied measure are at stake (Art. 368, 373, 386 CC);

e) authorize the spouse or registered partner to carry out legal acts pertaining to the extraordinary administration of assets (Art. 374, para. 3, CC);

f) mandate a third party to carry out specific tasks or appoint a qualified person or office to have the right of oversight and information (Art. 392, items 2 and 3, CC);

g) ensure that the curator receives the instructions, advice, and support necessary to fulfill their tasks (Art. 400, para. 3, CC);

h) participate in the establishment of an inventory (Art. 405, para. 2, CC);

i) proceed with the transfer of jurisdiction to the authority of the new domicile (Art. 442, para. 5, CC);

j) appoint a curator according to Article 449a CC;

k) communicate to the civil status office the placements under general guardianship and powers of attorney for the event of incapacity (Art. 449c CC);

l) execute decisions (Art. 450g CC);

m) inform and provide information about the existence and effects of a measure (Art. 451, para. 2, CC);

n) communicate to debtors the existence of guardianship restricting the exercise of civil rights (Art. 452, para. 2, CC).

In matters of inheritance devolution, the President of the Child and Adult Protection Authority is authorized to

a) institute a representation guardianship for the unborn child in order to safeguard its inheritance interests (Art. 544, para. 1 bis, CC);

b) request the establishment of a succession inventory (Art. 553, para. 1, item 3, CC).

1. The Child and Adult Protection Authority is approached by a written and summarily reasoned request.

2. It may act on its own initiative when a person appears to be in need of a measure.

The President conducts the proceedings.

The Grand Council sets the tariff for judicial fees and costs by decree, upon the proposal of the Council of State.

1. In cases where the procedure is not governed by the Code of Civil Procedure (CPC) of December 19, 2008, pursuant to federal law, the summary procedure as defined in Articles 248 et seq. of the CPC shall apply.

2. Articles 443 to 449c of the Civil Code (CC) are reserved.

The Child and Adult Protection Measures Court is a court of the Cantonal Tribunal.

1. The President of the Court for Child and Adult Protection Measures may rule alone in matters of

c) procedural or abusive appeals.

2. The President may do the same if the appellant, duly warned, does not pay the requested advance on costs within the allotted time.

1 The Court for the Protection of Children and Adults may delegate the administration of evidence to one of its members.

2. The judge responsible for administering evidence shall rule as a single judge in the case of

b) the dismissal of a procedure that has become irrelevant or concluded by withdrawal or a judicial settlement.

The president of the Court for the Protection of Children and Adults, as well as the judge responsible for the administration of evidence, is competent to take the necessary provisional measures during the course of the proceedings.

The Grand Council sets the tariff for judicial fees and costs by decree, upon the proposal of the Council of State.

Moreover, the procedure before the Court for the Protection Measures of the Child and the Adult is governed by Articles 450 to 450e of the Civil Code (CC) and by the Code of Civil Procedure (CPC).

The Judicial Council appoints a sufficient number of members to the Child and Adult Protection Authority.

The Judicial Council is the supervisory authority within the meaning of Article 441 CC.

[6] 1 The staff members of the service responsible for the protection of children and adults may be appointed as professional curators or guardians.

2. The appointment occurs after consultation with the service and according to its proposal.

3. The involvement, as professional curator or guardian, of the staff members of the service responsible for the protection of children and adults is subject to remuneration and reimbursement in accordance with the tariff.

4. The Council of State equips the service responsible for the protection of children and adults with the necessary positions to fulfill its missions.

[7] The department responsible for the protection of children and adults issues the necessary directives for the management of protection measures entrusted to its collaborators.

[8] The department in charge of the protection of children and adults provides private guardians with the advice and support they need to fulfill their duties.

[9] The Child and Adult Protection Authority may recognize other entities whose employees may be appointed as professional guardians.

[11] The Compensation of the Curator, Male Curator or Female Guardian, Male Guardian is Set Annually or Biennially by the Child and Adult Protection Authority, Based on the Significance and Difficulty of the Mandate.

[12] 1 The annual remuneration falls within the following limits, depending on the tasks undertaken by the guardian or trustee

a) administrative or financial management

b) personal support without management

from 100 to 800 francs

c) personal support with administrative or financial management

from 500 to 1,800 francs

d) significant personal support with administrative or financial management

from 1,000 to 3,600 francs

2. Significant personal support is defined as support requiring close and recurring personal and social assistance by the guardian or trustee, including, in particular

– the establishment and management of a network of professionals.

3. In the event of a change in tasks during the term by the Child and Adult Protection Authority, it determines the remuneration pro rata temporis.

4. Guardianship in favor of a child only results in remuneration if it includes representation or management tasks as defined by Articles 308, paragraph 2, and 325 of the Civil Code.

[13] 1 The Child and Adult Protection Authority may increase the remuneration provided for in Article 31a when it appears inequitable given the exceptional importance of the tasks undertaken by the curator or guardian, particularly at the commencement of the mandate.

2 This increased remuneration can only be granted upon an express and reasoned request by the curator or guardian.

[14] 1 When a measure must be entrusted to a lawyer due to their particular professional competencies, the remuneration is determined in accordance with the legal aid tariff.

2. When a measure must be entrusted to another professional, such as a notary or a property manager, due to their particular professional competencies, the remuneration is set based on the lowest hourly rate applied by the relevant professional association or by industry standards.

3. If the financial situation of the person concerned allows, the curator or guardian appointed due to their particular professional competencies is compensated according to the usual rate of their sector.

4. The decision instituting the guardianship or curatorship specifies the tasks for which the curator or guardian is appointed due to their particular professional competencies.

[15] 1 The guardian or curator required to travel for the purposes of fulfilling their mandate is entitled to an allowance covering transportation expenses, determined in accordance with the rates applicable to public service officeholders.

2. Other necessary expenses incurred in the execution of a mandate are reimbursed up to their actual amount, upon presentation of supporting documents.

[16] Upon decision of the Child and Adult Protection Authority, the guardian, male or female, may draw advances on their remuneration from the assets of the person concerned.

[18] Remuneration and compensation shall be borne by the individual concerned, or by their estate if applicable.

[19] 1 In case of indigence and if the concerned person possesses a net readily realizable asset less than 10,000 francs, the Child and Adult Protection Authority assigns the remuneration to the State.

2. The concerned person is considered indigent when they cannot cover the remuneration of the guardian or custodian without encroaching upon their minimum subsistence level, calculated according to the principles applicable in judicial and administrative assistance matters.

3. However, the monthly basic amount of the non-seizable norms is increased by 50%.

4. The State only covers the part of the guardian or custodian's fees that the concerned person cannot finance themselves through their available income or assets.

[20] 1. If applicable, the Child and Adult Protection Authority shall allocate the remuneration to be borne by the State in the decision that establishes it.

2. An excerpt of the decision, containing elements related to the remuneration, shall be notified to the service responsible for child and adult protection.

3. This service is entitled to contest the amount of the remuneration and its allocation to the State before the Child and Adult Protection Measures Court.

4. For this purpose, it shall have access only to those documents in the file on which the decision is based.

[21] 1. The State may require the reimbursement of the entire amounts it has covered, under the following conditions

a) when the person concerned, as a result of an inheritance, a gift, a lottery win, or other extraordinary income not deriving from their work, is able to reimburse all or part of the compensation;

b) when the compensation was improperly covered by the State due to false or incomplete information;

c) when equity demands it, in other circumstances or for other reasons.

2. The reimbursable amounts do not accrue interest.

3. The amounts are to be reimbursed by the person concerned, or by their heirs, up to the net assets of the estate.

[22] 1 The reimbursement may be claimed within two years from the day the State became aware of its right.

2. The right to reimbursement expires, in all cases, ten years after it arises.

[23] 1 When it is determined that the conditions for reimbursement are met, the service in charge of the protection of children and adults issues a decision.

2. The decision may be opposed by filing an objection with the aforementioned service within 30 days of its notification.

3. The decision on the objection may be appealed to the department designated by the Council of State.

1. Physicians authorized to practice in the canton may order a placement for a maximum duration of six weeks.

2. The physician who orders a placement shall, without delay, send a copy of the decision to the Child and Adult Protection Authority.

1. Based on a medical notice, the Child and Adult Protection Authority may order outpatient treatment.

2. The decision designates the physician responsible for the treatment and establishes the framework for its monitoring.

3. If the person concerned evades the scheduled checks or otherwise compromises the outpatient treatment, the physician responsible for the treatment informs the Child and Adult Protection Authority, which may decide on placement for assistance purposes if necessary.

1. In the event of imminent danger threatening a minor and when the Child and Adult Protection Authority cannot take the necessary emergency measures in time to protect the minor, the service responsible for the protection of children and adults may take such measures.

2. The emergency measures taken in accordance with paragraph 1 are communicated without delay to the Child and Adult Protection Authority.

1. The physician or the service responsible for the protection of children and adults may, if necessary, request the intervention of the Neuchâtel police.

2. Except under exceptional circumstances, the person who requested the police intervention must be present during the intervention.

**The Law on the Liability of Public Authorities and Their Agents (LResp), of June 26, 1989 [24], Governs the Recourse Action Provided for in Article 454, Paragraph 4 of the Civil Code.**

1. The assessors of the Child and Adult Protection Authority in place at the time of the entry into force of this law retain the benefit of their election to serve as members of the Child and Adult Protection Authority, provided they meet the conditions of Article 5 and until the appointment of members by the Judicial Council, but no later than June 30, 2013.

2. The Judicial Council appoints the members of the Child and Adult Protection Authority by June 30, 2013.

3. The members so appointed shall hold office for the remainder of the term of the judicial authorities.

Art. 37bis [25] Only the activities of the trustee, guardian, or curator carried out from the entry into force of Articles 31 to 31d are compensated and remunerated in accordance with these provisions.

The Act on the Application of the Provisions of the Civil Code on Deprivation of Liberty for Assistance Purposes, of February 4, 1981 [26], is repealed.

The modification of the law in force is set out in the annex.

This law is subject to an optional referendum.

1. This law shall take effect on January 1, 2013.

2. The Council of State shall provide, if necessary, for its promulgation and enforcement.

Law promulgated by the Council of State on December 12, 2012.

ANNEX

(Art. 39)

The following legislative acts are amended as follows

1. Law concerning the harmonization of official registers of persons and the control of residents (LHRCH), dated November 3, 2009 [27]

2. Law on political rights (LDP), dated October 17, 1984 [29]

3. Neuchâtel Judicial Organization Law (OJN), dated January 27, 2010 [32]

4. Law on the judiciary and the oversight of judicial authorities (LMSA), dated January 27, 2010 [39]

5. Law on notarial practice (LN), dated August 26, 1996 [41]

6. Law concerning the introduction of the Swiss Civil Code (LI-CC), dated March 22, 1910 [44]

7. Law on registered partnerships, dated January 27, 2004 [55]

8. Law on the execution of custodial sentences and measures for adults (LPMPA), dated January 27, 2010 [57]

9. Law on child care (LAE), dated September 28, 2010 [59]

10. Law on scholarships and training, dated February 1, 1994 [61]

11. Law on direct contributions (LCdir), dated March 21, 2000 [63]

12. Health Law (LS), dated February 6, 1995 [65]

13. Social Action Law (LASoc), dated June 25, 1996 [71]

14. Law on aquatic wildlife (LFAq), dated August 26, 1996 [74]

15. Law on public establishments (LEP), dated February 1, 1993 [76]

16. Law on commercial policing (LPCom), dated September 30, 1991 [78]