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Chronicle of the Chambre des notaires: The power of attorney and its limits

You have appointed a person to manage your affairs and administer your property for a period of time in a notarized document commonly referred to as a power of attorney or mandate. This power of attorney allows your mandatary to act on your behalf for a series of acts and under certain circumstances. But even though your mandatary has this notarized power of attorney in hand, he or she may still run into certain questions before being able to act on your behalf. Let's find out what they are and why.

 

What is the purpose of the power of attorney?

 

 A power of attorney is a document that allows someone you trust to take care of your affairs and administer your property while you are of sound mind and for a specified period of time (e.g., the duration of a trip) or not. The power of attorney can be specific for a particular deed, such as the sale of a building or a general power of attorney, or for the entire estate of the principal.

 

Power of attorney versus protection mandate

 

Do not confuse a power of attorney with a protection mandate, which will be used by a person who has lost his or her faculties. Unlike a protection mandate, a power of attorney takes effect immediately, whereas a protection mandate takes effect when you are declared incapacitated following the protection mandate probate process. In principle, the power of attorney ceases to be valid when the court finds that you are incapacitated. This is when the protection mandate is useful or the opening of a tutorship to the adult, in the absence of a protection mandate.

 

Is the power of attorney subject to questioning or validation prior to its use?

 

It is important to know that even in the presence of a notarized power of attorney, the fact remains that certain questions may arise, in order to protect the people involved.

 

Here are a few examples:

 

  • Make sure the power of attorney is still valid

It is quite possible that the person having to deal, via the power of attorney, will contact you to ensure that the power of attorney has not been revoked, or that the upcoming transaction is in accordance with your wishes, i.e. the sale of a building for example. This situation often arises due to the obsolescence of the power of attorney.

 

  • Banking Requirements

Financial institutions place stringent requirements on their staff. Let's take as an example, opening a new account. The institution must verify the identity of the account holder, not just the agent. Certain laws or regulations may limit the powers of the power of attorney.  Similarly, it is preferable, in addition to the notarized general power of attorney, to fill out the bank power of attorney form.

 

  • Doubts about transactions or your capacity

Your agent has been representing you for years at your institution, and suddenly transactions are blocked. Your agent does not understand, and your institution replies that it has no obligation to justify itself, in particular because of the protection of personal information and that it is its prerogative.  They may have doubts about your cognitive ability as the power of attorney goes out in the event of an intellectual disability.  It is also possible that your institution has doubts that you may be a vulnerable and financially manipulated person, or that suspicious transactions, made by your agent, appear on your account.

 

The advantages of notarized power of attorney

Despite the above statements, there are many advantages to notarizing a general power of attorney.

Here are some situations where a power of attorney could be useful to you:

  • You don't have time to mind your own business.
  • You're going on a trip.
  • Your affairs are complex and you want to delegate certain tasks to a family member, friend or professional.
  • You are injured or have difficulty moving around due to a physical health problem.

Consult your notary, who will be able to draw up the special or general power of attorney that suits your needs.

 

For more information, visit our website on this topic.

 

Do you have any questions?

Consult a notary or use free or low-cost legal resources available in Quebec.