Power of attorney
A power of attorney is a contract in which a person (mandator) authorizes another person (mandatary) to represent and perform certain act on his behalf. For example, you might want to go on a long vacation and want someone to take care of your property while you’re gone. You might also feel at ease that someone more experienced takes care of your financial affairs or property.
The power of attorney only applies to properties.
There is no particular form for a power of attorney. It can be even unwritten. Normally the following information should appear in the document: the date in which the contract is signed, the name of the mandatary, description of the powers given. The power of Attorney might be as broad or as specific as you want it to be.
Power of attorney does not require the mandatary to be a lawyer. The “attorney” is simply the capable person that is acting on your behalf.
The document takes effect upon signature or acceptance. It ends if, for example, when:
- The mandator dies;
- The mandatary becomes incapable;
- The capable mandator revokes the mandatary;
- The mandatary renounces the mandate.
Protection mandate
A mandate commonly known as protection mandate (formerly called “mandate in case of incapacity”) is a document which allows an individual to appoint one or more person to look after him (her) and his (her) properties in the event that the individual become incapable. The mandatary or mandataries must be of legal age and must also be capable to perform the obligation assigned to them.
A protection mandate must be in written. It may or may not be notarized. If not notarized, the protection mandate must be signed in front of two witnesses. The witnesses shall have no interest in the mandate and shall be able to ascertain the capacity of the mandatory. They also sign the mandate.
The content of a protection mandate might vary depending on your needs and wishes. You have to decide the powers and obligation of your mandatary or mandataries. To do this, you have two options. The first one is to do a general mandate which allows the mandatary/mandataries a greater freedom of action. This type of mandate gives a general power to the person responsible of your affairs to take care of your properties without going into it in great details. The other option is to draft a detailed mandate which list point by point the power of your mandatary/mandataries. This kind of mandate give less leeway to the mandatary/mandataries so when an unforeseen situation happen it can prevent the person you designated to act.
Conditions
Two conditions required for a protection mandate to come into effect. First of all, a medical and psychological test has to determine that a concerned person is in fact incapable. Incapacity is a question of fact that can be proven by witnesses, but must be demonstrated by medical and psychosocial assessments. Unless otherwise stipulated in the mandate, the fact that the mandator is unfit, even to the slightest degree, is sufficient to declare the mandatory incapacited.
Secondly, the mandatary has to ask the Court to homologate (probate, verify) the mandate. This procedure usually requires a lawyer.
If incapacity is temporary, the concerned person can later ask the Court to revoke the mandate. The mandatary may also ask the Court for the same.
Key Differences
The power of attorney takes effect when the mandator so decides he may terminate it at any time. The power of attorney become invalid when the mandator is no longer able to oversee the actions of the mandatary or when the Court has declared the mandatory incapacitated. A protection mandate only takes effect after the homologation process and it can only be revoked by the Court order.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.