Lasting power of attorney
The lasting power of attorney allows any person to organize his future dependency through a tailor-made legal protection, without losing his rights and his legal capacity.
What is the point of lasting power of attorney?
When an individual (an adult or an emancipated minor) is not able to look after their interests, on their own, a judge may order that a protective measure be put in place. This may be due to an alteration in either the person's mental or physical capacities, such that they not able to express their wishes.
Three possibilities, with varying degrees of restrictiveness, are available for the judge:
- a sauvegarde de justice [device for the judicial protection of incapable adults],
- a curatelle [temporary guardianship]
- or a tutelle [guardianship].
The lasting power of attorney (which derives from the Law of 5 March 2007) is very innovative as it does not require the intervention of a judge. The principal arranges their own protection and the protection of their assets , in advance. They appoint the person who will be charged with representing them when they are no longer able to represent themself due to their physical or mental state of health. This type of power of attorney is therefore a means of putting in place customised legal protection for the vulnerable person and their assets, without causing him to lose his rights and legal capacity. It may be combined with instructions expressing the person's wishes regarding end-of-life care.
What are the powers of the agent?
The mandatary may protect the personal and / or patrimonial interests of the mandator. The scope of the agent's powers depends partly on the wishes of the mandator, i.e. what that person decided when the power of attorney was drawn up, and also on the form of the power of attorney.
If a notaire is instructed to draft the power of attorney, the agent's powers will be more extensive. It should be noted that it is possible to draft a lasting power of attorney for another person. This device can therefore be used to arrange the protection of a disabled minor, for example.
Which form does the power of attorney take?
The power of attorney may be prepared in the form of authentic deed or a private document (i.e. a document not recorded by a notaire [sous seing privé]).
The power of attorney by authentic deed
In this case, the role of the agent is limited to the least important acts, i.e. protective acts and day-to-day management. Anything beyond this will require the authorisation of a judge. The power of attorney may also be drafted in form of an authentic instrument, i.e. a notarised deed. When the document is prepared, the mandator will have the benefit of the notaire's advice and explanations. Thanks to the fact that the document is in this form, the agent's powers will be more extensive. They may sell any assets without involving a judge and will only need to seek authorisation from a guardianship judge if they wish to make a gift .
It should be noted that when the power of attorney is needed in order to protect a disabled child, the document must be in the form of a notarised instrument.
The power of attorney by private document
The management of property is limited to the least important acts, that is to say the conservatory acts of administration. On the other hand, any act of disposition requires the authorization of the guardianship judge.
When does the mandate take effect?
The mandate takes effect when it is established that the principal can no longer provide for his own interests. This impossibility must be medically established by a doctor registered on a list drawn up by the public prosecutor. The list is available in the district courts.
The agent produced at the registry of the district court the mandate of future protection, the medical certificate in order to target the mandate by the clerk and thus allow its implementation. (Article 481 of the French Civil Code). As long as the mandate has not taken effect, it can be canceled or modified. The agent can always give up the mission entrusted to him.
Does the principal retain the ability to act alone?
Once the power of attorney has been put into effect, it is very flexible. If the principal's state of health enables them to carry out certain acts, they will retain the capacity to do them alone. Furthermore the agent must inform the mandator of everything they have done in the mandator's name. They must also prepare an inventory of the assets and update it every year. The agent must also prepare an account every year, showing how they have managed the mandator's assets, which will be forwarded to the notaire who drafted the instrument.
Having a lighter workload than the guardianship judge, the notaire is able to pay closer attention to the agent's activities and, in the event of a serious irregularity, ask that the attorney be removed.
How can one tell if the power of attorney is appropriate for the situation?
The notaire can advise on whether it would be appropriate or not to set up a lasting power of attorney.
The notaire can also discuss the usefulness of a power of attorney with posthumous effect [mandat à effet posthume]; the advantage of appointing an executor in one's will ; of dividing the estate among the presumptive heirs in one's lifetime, in an appropriate way; of making two-step gifts [gifts to two individuals in succession], whether in the form of a libéralité graduelle or résiduelle; or possibly, the advantage of having some of the heirs waive their right to have previous gifts reduced. When the interests of a disabled child have to be considered, they may also advise on the advantage of taking out a life insurance policy that will provide the disabled child with an income for life [contrat de rente survie] and/or a disabled person's savings account [contrat d'épargne-handicap].
To summarise, the notaire guides the client in the search for a balanced family arrangement that is legally viable, and beyond dispute: do not hesitate to contact your notaire without delay!