The handbook of the Admin support assistant
Edited by the Technical and Scientific Commission of Anffas Sicily (www.anffasicilia.net)
Anffas Sicily has edited this handbook to describe the position of the Admin support assistant, its tasks and characteristics.
According to the law, any person can be appointed as admin support assistant, provided that the person assisted benefits from it.
There are no specific qualifications or requisites to be an Admin support assistant.
The person is nominated by a magistrate, being either appointed among the family members or, in case of controversies, outside the family.
The state or private social service operators, that take care of the person assisted, cannot be elected as Admin support assistants.
The main task of the Admin support assistant is “to assist or represent”: in the first case, the Admin support assistant helps the weak subject in the finance management, without replacing them.
In the second case, the Admin support assistant completely replaces the person assisted.
The specific competences of the Admin support assistant are defined for each individual case, on the basis of the needs of the person to assist.
The revolution that the Admin support assistant’s figure represents is that, differently from the interdiction, the person assisted can still play an active role in the acts that do not require the exclusive representation.
The person assisted therefore can satisfy their usual needs.
The Admin support assistant has to write an annual record of the financial activity and report to the magistrate the life conditions and standard of living of the person assisted.
- Who can be nominated as Admin support assistant?
- Are there any issues incompatible with the position of Admin support assistant?
- Is it possible to reject the nomination of Admin support assistant?
- Once accepted the nomination, does the Admin support assistant have to fulfil it in any case?
- What are the powers of the Admin support assistant?
- Are there any subjects that are not allowed to be Admin support assistants?
- What are the effects of the Admin support on the person assisted?
- What acts can and must the Admin support assistant do?
- Are there any duties that the Admin support assistant has to fulfil?
- What acts cannot the Admin support assistant do?
- What happens in case of breaking the law by the person assisted or the Admin support assistant?
- Is it possible to withdraw the nomination of Admin support assistant?
- Further observations
1. Who can be nominated as Admin support assistant?
Anyone can be nominated as Admin support assistant. The election must occur “in the exclusive care and interest of the person assisted” (see article 408 of the Civil Law).
The Law does not require any specific requisites or qualifications.
In case of specific knowledge (economic, legal, financial, administrative, etc) it is necessary to nominate a person able to fulfil the tasks assigned by the magistrate.
It also possible that the Admin support assistant is paired by a professional (e.g. a doctor, a business consultant, a lawyer) to accomplish certain duties.
The Law states that family members (or subjects outside the family) of the person assisted can be nominated as Admin support assistant, provided that they act in the exclusive care and interest of the person assisted. For that reason, in case of family controversies, the magistrate can also nominate a subject outside the family of the person assisted.
2. Are there any issues incompatible with the position of Admin support assistant?
In compliance with the article 408 of the Civil Law, the state or private social service operators, that take care of the person assisted, cannot be elected as Admin support assistants.
Nevertheless, the interpretation and application of the law is univocal.
There are previous cases in which the magistrate can nominate them as Admin support assistants, being the only potential administrators to rely on.
Therefore the magistrate will nominate a person that did not directly deal the person assisted. Regarding the potential interdiction of the person assisted, a person cannot be nominated as Admin support assistant if:
- they cannot freely dispose of their own assets;
- the parent has formally excluded the children;
- there is a controversy with the person assisted, posing a risk for them;
- the person has been removed from the administration or suspended from parental responsibility (failed).
3. Is it possible to reject the nomination of Admin support assistant?
No, it is not.
There are previous cases in which the person nominated by the magistrate rejected the nomination and was punished.
According to the regulations about the administrative support, there are conditions in which it is possible to apply for and obtain a dispensation.
Such conditions (e.g. age over 65, having more than three children, being already Admin support assistant, having mental illnesses) are listed in the article 352 of the Civil Law.
4. Once accepted the nomination, does the Admin support assistant have to fulfil it in any case?
They will not have to pursuit it in case of incompatibility or dispensation.
The magistrate, though, can exonerate the Admin support assistant any time in case the office is too hard and there is the possibility to replace them; or in case the Admin support assistant results inappropriate or defaulting.
5. What are the powers of the Admin assistant supervisor?
The powers of the Admin support assistant are established in the decree of the nomination, that is in all the following actions issued by the magistrate.
There is a difference between assistance acts and representation acts.
The latter is divided between representation and exclusive representation.
In the first case, the Admin support assistant helps the weak subject in the finance management, without replacing them.
In the second case, the Admin support assistant replaces the person assisted according to the acts.
In case of exclusive representation, the person assisted will not be able to act at all.
6. Are there any subjects that are not allowed to be Admin support assistants ?
Yes, there are. “The state or private social service operators, that take care of the person assisted, cannot be elected as Admin support assistants”.
7. What are the effects of the Admin support on the person assisted?
The revolution that the Admin support assistant’s figure represents is that, differently from the interdiction, the person assisted can still play an active role in the acts that do not require the exclusive representation. The person assisted therefore can satisfy their usual needs.
8. What acts can and must the Admin support assistant do?
Only those that have been clearly stated through decree by the magistrate.
9. Are there any duties that the Admin support assistant has to fulfil?
“In accomplishing their duties, the Admin support assistant has to respect the needs and expectations of the person assisted.
The Admin support assistant has to inform the person assisted about the acts to fulfil and also the magistrate in case of disagreement with the person assisted. In case of disagreement or negligence about the interests or requests of the person assisted, the Prosecutor or other subjects (see article 406) can refer to the magistrate.
The Admin support assistant does not have to be in charge for over 10 year, unless they are the spouse of the person assisted, or the partner, or the family members” (see article 410 of the Civil Law).
The Admin support supervisor has to write an annual record of the financial activity and report to the magistrate the life conditions and standard of living of the person assisted.
10. What acts cannot the Admin support assistant do?
Certain acts cannot be fulfilled by the Admin support assistant unless there is a formal authorization by the Court or the magistrate in compliance with the article 374 and 375 of the Civil Law, such as:
- purchasing assets, excluding the furniture necessary to the minor, to the domestic economy and the administration of the assets (art. 357);
- collecting capitals, allowing the cancellation of mortgages or releasing liens, signing bonds, unless these expenses are necessary to the maintenance of the minor and the administration of the assets;
- accepting or rejecting an inheritance or donations;
- signing tenancy contracts longer than 9 years (1572) or lasting over a year after reaching the age of 18;
- taking action before a court, unless there is a real offence or feared offence (1171) in terms of illicit possession claims or housing eviction.
And also:
- throwing away assets, unless subject to deterioration (376);
- signing liens or mortgages;
- issuing a division of the assets ;
- signing money transactions or accepting agreements.
11. What happens in case of breaking the law by the person assisted or the Admin support assistant?
“The acts fulfilled by the Admin support assistant that violate the law or exceed the power given by the magistrate can be cancelled on demand of the Admin support assistant, of the Prosecutor, of the person assisted or their heirs. Also the acts personally fulfilled by the person assisted can be cancelled on demand of the Admin support assistant or of the Prosecutor.
The actions are valid for 5 years. The deadline starts from the moment in which the administrative assistance has ceased” (art. 412 of the Civil Law).
12. Is it possible to withdraw the nomination of Admin support assistant?
“When the person assisted, the Admin support assistant, the Prosecutor or any subject as referred to in the article 406 believe that the administrative assistance should be terminated, or because it should be substituted, they can write an instance to the magistrate.
The instance is forwarded to both the person assisted and the Admin support assistant.
The magistrate proceeds through a decree.
The magistrate also forwards the declaration of the termination of administrative support when this results inappropriate to assist the person. In that case, if the magistrate believes that the person assisted should be interdicted or invalidated, they will inform the Prosecutor.
In that case the administrative support will be terminated with the nomination of a tutor or a temporary assistant in compliance with the article 419, that is the declaration of interdiction or invalidation” (art. 413 of the Civil Law)
13. Further observations
The administrative assistance is a new and unexplored legal instrument with an outstanding potential.
Some cases of application are for instance when the Admin is nominated in case of future inability or therapeutic treatments.
For these and other reasons, such as in case of civil invalidation or disability, it is preferable that both the Admin support assistant and the person assisted are supported by competent professionals on several matters.
It is important to highlight that the Admin support assistant is a “tailored figure” and it changes from case to case not only on the basis of the needs of the person assisted and the ability and availability of the Administrator, but also on family and social network around the person assisted, their life expectations and development. The person must be assisted dynamically and not passively.