Private Wealth Series: Guardianship (Pengampuan) under Indonesian Law

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Authors

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Under Article 1330 of the Indonesian Civil Code (Burgerlijk Wetboek – “KUH Perdata” or the “Civil Code”), certain individuals are deemed legally incapable (tidak cakap) of entering into agreements. These include minors, persons placed under guardianship, married women in circumstances specified by law ¹, and, more broadly, anyone prohibited by statute from entering into particular agreements.

The principle underlying this provision is that any legal act performed by a person who lacks legal capacity may be declared invalid. To safeguard their interests, such individuals are generally required to act through legal representatives, such as parents or guardians, when engaging in binding legal transactions.

In Indonesia, adults who are no longer deemed legally capable may be placed under guardianship, which provides a formal mechanism to ensure the protection of their legal and financial interests.

This edition of the ARMA Update, we will discuss the concept of guardianship under Indonesian law.

1. General Overview

   Guardianship is a legal status in which an adult is declared incapacitated to perform legal acts, thereby requiring a guardian who is entitled to act on their behalf. In such cases, the adult’s legal capacity is equated with that of a minor, rendering them unable to independently perform valid legal acts. ²

   The categories of people subject to guardianship are regulated under Article 433 of the Civil Code, as amended by Constitutional Court Decision No. 93/PUU-XX/2022, which provides:

   “Every adult who is continuously in a state of idiocy, mental illness, or insanity, categorized as a person with a mental and/or intellectual disability, may be placed under guardianship, even if they occasionally possess the capacity to use their reasoning. An adult may also be placed under guardianship due to prodigality.”

   Furthermore, Guardianship may be petitioned by every blood relative on the grounds of idiocy, insanity, or lunacy. In cases of prodigality, guardianship may only be petitioned by blood relatives in the direct line, and by those in the collateral line up to the fourth degree. In addition, any person who, due to weakness of intellect, considers themselves incapable of properly managing their own affairs, may request guardianship for themselves. ³ In addition, the competent authority to determine guardianship is the District Court (Pengadilan Negeri) within the jurisdiction of the residence of the person to be placed under guardianship. ⁴

   Accordingly, under certain circumstances, an adult may be equated with a minderjarig (minor). Although legally an adult, such person is deemed incapable of independently managing legal affairs and may therefore be placed under guardianship. Under the Civil Code, the grounds for which a person may be placed under guardianship include: ⁵

   1. The management and settlement of matters relating to guardianship, custodianship, property of persons declared absent (afwezigheid), and unadministered estates (onbeheerdenalatenschap);
   2. Registration of wills, as well as the opening and reading of secret/closed wills;
   3. Issuance of certificates of inheritance rights;
   4. Acting as curator in the management, settlement, and liquidation of a limited liability company in matters of bankruptcy;
   5. Administration of third-party funds;
   6. Preparation of programs, budgets, facilitation of bureaucratic reform, management of information technology and public relations, administrative and personnel affairs, financial management, state-owned assets and household affairs, as well as evaluation and reporting to the Estate Office (Balai Harta Peninggalan – “BHP”); and
   7. Other tasks mandated by statutory regulations.

2. Mechanism for the Registration of Guardianship

   Under the Civil Code, the procedure for filing a petition for guardianship at the District Court begins with the submission of a written petition addressed to the Chief Judge of the District Court ⁶, setting out the reasons and circumstances necessitating the guardianship. The petition must be supported by relevant documents, including copies of the identity cards of the petitioner and the person to be placed under guardianship, family card, medical certificate or psychiatric report, and other evidence depending on the grounds for guardianship (e.g., medical statements for mental incapacity or proof of extravagant spending) ⁷. Upon registration, the petition is assigned a case number and examined by a judge, who may also hear testimony from family members. ⁸ If the evidence is deemed sufficient, the judge will issue a court ruling (penetapan) granting the guardianship. ⁹

   Pursuant to Article 449 of Civil Code, once a court decision on guardianship has attained permanent legal force, the appointment of a guardian must be immediately notified to the BHP as it is the authority responsible for recording and supervising guardianship decisions, serving as the official registry of such legal actions and the basis for oversight of the ward’s property management. In such cases, the BHP serves as the Supervisory Guardian (Toeziende Curator) for adults placed under guardianship due to idiocy, mental illness, or prodigality. The BHP’s supervisory role ends when the person under guardianship either recovers or passes away.

   Requirements for Guardianship

   The following documents are required to register guardianship:

   1. Court Decree on Guardianship;
   2. Identity Documents of the Guardian;
   3. Identity Documents of the person placed under guardianship;
   4. Evidence of Assets belonging to the person placed under guardianship.

   Note: All copies must be legalized by the issuing authority or a notary (except for authentic electronic documents).

In conclusion, while Indonesian civil law generally presumes that every adult is legally competent to enter into and perform civil acts, the law also recognizes that certain individuals may lack the capacity to act on their own behalf due to specific conditions, such as mental or intellectual disability or even financial recklessness. In these circumstances, guardianship serves as a crucial legal mechanism to safeguard both the individual concerned and third parties who may be affected by their actions. For example, we assisted a high-net-worth client who required a formal guardianship determination and registration with the BHP in order to withdraw funds from a savings account, illustrating how guardianship can be both a safeguard and a procedural necessity. By placing an adult under guardianship (which may be conducted by direct blood relatives in the line of descent, as well as by collateral relatives up to the fourth degree), the law ensures that their legal rights and obligations are protected, while also preventing potential misuse or mismanagement of their assets.

1. Supreme Court Circular No. 3 of 1963 in conjunction with Article 31 of the Marriage Law, affirming that married women may independently perform legal acts ↩
2. Subekti, Pokok-Pokok Hukum Perdata, Fourteenth Edition, Jakarta: Intermasa, 1979, pp. 47–48 ↩
3. Article 434 of the Civil Code ↩
4. Article 436 of the Civil Code ↩
5. Articles 433 through 462 of the Civil Code ↩
6. Article 436 of the Civil Code (duplicate reference) ↩
7. Article 437 of the Civil Code ↩
8. Article 438 of the Civil Code ↩
9. Article 440 of the Civil Code ↩

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Disclaimer:
This client update is the property of ARMA Law and intended for providing general information and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. ARMA Law has no intention to provide a specific legal advice with regard to this client update.

In this article

1. General Overview
2. Maximum Limit of Economic Benefits
3. Repayment Capacity Analysis
4. Miscellaneous

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