In a financial world, access to a bank account is an essential right. This article, while focusing on the general principles governing the opening and operation of bank accounts and the essential legal features of bank accounts, concentrates on the specific protections available. Minors, protected adults and financially vulnerable people benefit from a specific legal framework that enables them to reconcile their autonomy with the need for protection.
Minors' bank accounts: limited capacity under scrutiny
Unemancipated minors: opening and operating rules
Opening an account for an unemancipated minor falls within the remit of their legal representative. Under article 389-4 of the French Civil Code, the legal representative may perform administrative acts alone, such as opening a first account. For additional accounts, the decree of 22 December 2008 classifies them as acts of disposal requiring the agreement of both parents.
Payments into a minor's account generally pose no problem. Withdrawals, on the other hand, require greater caution. Minors can make small withdrawals on their own, which are considered to be everyday transactions within the meaning of article 389-3 of the French Civil Code. Large withdrawals, however, require the involvement of the legal representative.
Banks, keen to limit risk, often ask the legal representative to set a monthly withdrawal limit. This practice makes it possible to reconcile the gradual autonomy of minors with their protection.
As for payment instruments, the provision of a chequebook to a minor is generally excluded. The 2008 decree classifies the application for a bank credit card as an act of disposal, while the withdrawal card is classified as an act of administration.
Minors aged 16 and emancipated minors: greater autonomy
From the age of 16, a minor may be authorised by his or her parents or legal guardian to set up an EIRL or a single-member company, as provided for in article 389-8 of the French Civil Code. To manage this activity, they may open and administer a bank account on their own.
Emancipated minors have full legal capacity under article 413-6 of the French Civil Code. They can therefore open and manage an account under the same conditions as an adult, including for a commercial activity if this has been authorised (article 413-8 of the Civil Code).
The accounts of protected adults: a balance between protection and autonomy
Adults under guardianship: a strict framework
Adults under guardianship are subject to a general incapacity comparable to that of unemancipated minors. Article 496 of the Civil Code establishes a single guardianship regime applicable to minors and adults.
To open and manage the account, the guardian acts on behalf of the protected adult. The transactions that he or she may carry out alone are limited to acts of administration. Acts of disposal, in particular withdrawals of capital, require the authorisation of the family council or the judge (article 505 of the Civil Code).
Adults under guardianship: controlled autonomy
Adults under curatorship retain greater autonomy. They can open an account and operate it under their own signature, but certain transactions require the assistance of the curator.
Article 467 of the Civil Code stipulates that the curator must countersign acts of disposal. Under an enhanced guardianship arrangement, the curator collects and manages the adult's funds as a guardian would, but leaves the surplus at the adult's free disposal.
Safeguard of justice and other measures
Safeguards of justice, future protection mandates and legal support measures do not fundamentally alter the banking capacity of the people concerned. They can continue to manage their accounts, albeit with some nuances:
- Under court protection, the person retains their legal capacity, but their acts may be rescinded on the grounds of lesion (article 435 of the Civil Code).
- With a mandate for future protection, the mandatary acts in accordance with the powers defined in the mandate (articles 477 and 490 of the Civil Code).
The principle of the intangibility of accounts
Article 427 of the Civil Code lays down an essential principle: accounts existing prior to the protective measure must be maintained. The aim of this rule is to preserve the protected adult's banking references and avoid any destabilising breaks, although specific rules apply to the closure of accounts in the event of legal incapacity.
People in financial difficulty: specific protection
Legal definition of financial fragility
Article R. 312-4-3 of the French Monetary and Financial Code defines several criteria for identifying financial fragility:
- Irregularities in the operation of the account for three consecutive months
- Resources credited to the account below certain thresholds
- Registration in the Central Cheque Register for unpaid cheques
- Over-indebtedness file declared admissible
Around 3 million people were affected in France in 2015, according to the Banking Inclusion Observatory.
The specific compulsory offer: a mechanism for inclusion
Act no. 2013-672 of 26 July 2013 requires banks to offer people in vulnerable situations a specific package including:
- A bank card with systematic authorisation
- A limited number of transfers and an unlimited number of direct debits
- Account balance alerts
- No cheque book
This offer represents a significant step forward in the fight against exclusion from the banking system. The rate is regulated, with a current ceiling of €3 per month (article R. 312-4-3 of the French Monetary and Financial Code).
Capping fees and commissions: protection against over-indebtedness
Article L. 312-1-3 of the French Monetary and Financial Code sets a twofold cap on fees:
- For all customers: €8 per transaction and €80 per month
- For people in vulnerable situations who have subscribed to the special offer: €4 per transaction and €20 per month
The aim of this scheme is to limit the worsening financial difficulties of vulnerable people, who are particularly exposed to payment incidents and for whom managing their accounts is a crucial issue.
Decree no. 2020-889 of 20 July 2020 strengthened these measures by specifying that the accumulation of five incidents in a single month is now sufficient to characterise financial fragility.
Protecting vulnerable people in their dealings with banking services often requires specialised legal expertise. Don't hesitate to contact our firm for personalised assistance in banking law, whether you need to set up a protection measure or challenge abusive bank charges.
Sources
- Civil Code, articles 389-3, 389-4, 389-8, 413-6, 413-8, 427, 435, 467, 477, 490, 496, 505
- Monetary and Financial Code, articles L. 312-1-3, R. 312-4-3
- Decree no. 2008-1484 of 22 December 2008 on acts relating to the management of the assets of persons placed under curatorship or guardianship
- Law 2013-672 of 26 July 2013 on the separation and regulation of banking activities
- Decree no. 2020-889 of 20 July 2020 amending the criteria for assessing financial fragility
- Banking Inclusion Observatory, 2015 Annual Report
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