Representation curatorship with asset management in the absence of capacity of judgment at the time of marriage; exclusion of the spouse's statutory power of representation (Art. 374 CC); revocation of the curator's duty to inform the children

Facts

The Child and Adult Protection Authority of the City of Zurich (KESB) on 28 February 2019, based on a report of endangerment by the son [D.] , established for [B.] (appellant, father) a representation curatorship with asset management under Art. 394 in conjunction with Art. 395 CC, and noted that [A.] (appellant, wife of [B.] ) had no power of representation under Art. 374 paras. 2 and 3 CC. The District Council of Zurich revoked this decision on 26 September 2019 upon appeal.

Upon appeal by the children [D.] and [C.] (respondents), the Higher Court of the Canton of Zurich, II Civil Chamber, by decision of 30 October 2019 provisionally reinstated a representation curatorship with asset management, which it restricted on 12 December 2019. By judgment of 3 June 2020 (PQ190070-O/U), the Higher Court replaced the operative part of the District Council's decision as follows: representation curatorship with asset management under Art. 394 in conjunction with Art. 395 CC, with the tasks of representing the appellant in administrative and financial matters and of managing his income and assets with due care, whereby his access to all assets is withdrawn except for one account under self-administration pursuant to Art. 395 para. 3 CC; the curator shall inform the respondents every two months or as needed about the state of health and about official or other third-party contacts that go beyond everyday contacts (no. 1c). It was further noted that the wife has no power of representation under Art. 374 paras. 2 and 3 CC.

The Higher Court affirmed a state of weakness under Art. 390 para. 1 no. 1 CC based on the hearings of 28 January 2019 (KESB) and 9 December 2019, the statements of the curator, a medical certificate of 29 January 2020 (age-related restricted cognitive abilities), and the information from Spitex. The appellant had already been unable, at the time of the marriage on 23 January 2019, to regulate his financial affairs independently, so Art. 374 CC did not apply. The daughter and the son were excluded as mandate holders due to the disrupted family relationships; the stepson was also not appointed, instead a neutral person was.

The appellant wife (proceedings 5A_546/2020) and the appellant husband (proceedings 5A_547/2020) filed appeals in civil matters with the Federal Supreme Court on 3 July 2020. The wife requests the annulment of the judgment; the husband requests annulment or, alternatively, remittal; both request the joinder of the proceedings. The respondents ([C.] and [D.] , represented by attorney Damian Müller) requested dismissal. The Higher Court waived a response.

Considerations

The Federal Supreme Court joined proceedings 5A_546/2020 and 5A_547/2020 by analogous application of Art. 24 FCPA in conjunction with Art. 71 FSCA, as they are directed against the same decision between the same parties. The appeal in civil matters is available as a remedy against a final decision of a last cantonal instance in a non-pecuniary matter of adult protection (Art. 72 para. 2 lit. b no. 6, Art. 75, Art. 90 FSCA). The respondents disputed the appellant wife's standing; the Federal Supreme Court affirmed it, since the appellant wife in the cantonal proceedings effectively requested dismissal of the appeal and was unsuccessful in the operative part with the annotation regarding Art. 374 CC (Art. 76 para. 1 FSCA). A purely cassatory request is admissible where the order is adverse. The Federal Supreme Court is bound by the facts established by the lower court (Art. 105 para. 1 FSCA); the appellant wife's appellate account of the facts remained unconsidered.

Regarding the state of weakness (Art. 390 para. 1 no. 1 CC), the appellants complained of incomplete establishment of the facts, in particular because no expert opinion had been obtained and the findings related only to December 2019 to June 2020. The Federal Supreme Court rejected this: obtaining an expert opinion is not mandatory for establishing a curatorship (Art. 446 para. 2 CC), since the adult protection authority is a specialist authority (Art. 440 para. 1 CC); the appellants did not assert any lack of specialist competence. The statements reached back to 28 January 2019, i.e. a few days after the marriage, so there was a sufficient temporal connection. The finding that the appellant was no longer capable of looking after his financial affairs at the time of the marriage was not arbitrary; the civil registry office is not bound by the civil court's assessment.

Regarding the complaint of violation of Art. 374 para. 1 CC: since it was binding on the Federal Supreme Court that the appellant was already incapable of judgment at the time of the marriage, the spouse's statutory power of representation lapses. The complaint of violation of Art. 166 CC (representation for current needs) and of the duty to give reasons fails: the Higher Court gave a detailed justification for the restriction of access, and the appellant retains an account under self-administration.

Regarding the complaint of violation of Art. 388 CC (self-determination), Art. 389 CC (subsidiarity) and Art. 5 para. 2 Cst. (proportionality): given the…