September 30, 2024

What is the purpose of a mandate of protection?

Chronicle of the Chambre des notaires

Option consommateurs

If you were to become incapacitated one day, who would take care of you and your property? Fortunately, this is what the mandate of protection can provide.

The Mandate of Protection, commonly known as the "Mandate of Incapacity", is an essential legal document to ensure the proper administration of your property and the protection of your person in the event of incapacity.

In practical terms, it allows you to name the person or persons who will make decisions on your behalf should you become incapacitated. You are considered legally incompetent when your state of health renders you incapable of making decisions or acting on your own behalf, and the court has ruled that you are incompetent.

Indispensable mandate

It's always preferable to choose your own representative, the powers you give him or her and their limits. This is particularly recommended in the case of a blended family, a dysfunctional family, an absence of family or when you wish to specifically exclude a family member.

Consider, for example, the tensions that might exist between the children of a previous union and the new spouse. In the event of the father's incapacity, if there is no mandate and a meeting of the parents has to be called, there is a good chance that the children will exclude the new spouse. If the father wanted her to look after him, he would have been well advised to mention this in a mandate...

You've signed a power of attorney and you think that's enough? Think again, because a power of attorney becomes invalid if you become incapacitated, and only a mandate of protection can name the persons who will act on your behalf in the event of incapacity.

Managing your assets

A mandate allows you to set out the powers powers and responsibilities of one or more persons you have chosen to administer your property should you become incapacitated. The mandatary or mandataries could, for example :

Sell or mortgage your assets;

Borrow money in your name for your own needs;

Invest your money to make it grow;

Provide guidelines to help you manage your business;

Use your money and assets to meet the needs of your spouse and children.

Since the 1ster November 2022, the mandate must stipulate that the mandatary or mandataries will draw up an inventory of your assets and debts when they take up their duties. You must also stipulate that they will be accountable for their administration to one or more persons of your choice. If you don't know who to choose for this task, you can designate the Curateur public.

Protecting yourself

The Mandate of Protection also allows you to confer powers and responsibilities on one or more mandataries with regard to the protection of your person. In your mandate, you could, for example :

Specify your wishes regarding the care you would like to receive and where you would like to be accommodated;

Specify that the mandatary must respect your autonomy and consult you before making decisions concerning you, if your state of health permits;

Schedule periodic reassessments of your health status as needed.

Other benefits

But that's not all: a mandate of protection also makes it possible to :

Appoint a guardian for your minor children;

Reduce costs and delays for your care, because without a mandate, your family or loved ones will have to take more complex legal steps to have a representative appointed;

Provide that any dispute between your representatives will be submitted to arbitration;

Plan for any other directives that may be relevant to your situation.

You can always change your mind about your choice of agent by signing a new mandate or an amendment.

No protection mandate?

If you do not have a protection mandate and are declared unfit, a court will appoint the person responsible for looking after you and your property. to look after you and your property. It will also determine how he or she will make decisions concerning you.

All the decisions and actions of this person will be subject to the supervision and control of the Curateur public and a tutorship council. The latter is generally made up of three people from your entourage, appointed by the court.

Keep in mind that these administrative and legal procedures can lead to long delays and higher costs than those associated with the preparation of a mandate of protection by a notary. This is a good reason to get your mandate!