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 a power of attorney for?
A power of attorney is a document enabling a trusted person to deal with your affairs and administer your property while you are of sound mind, and for a specified period (e.g. the duration of a trip) or not. A power of attorney can be specific, for a particular act such as the sale of a property, or general, for the entire estate of the principal.
Power of attorney versus mandate of protection
Do not confuse a power of attorney with a mandate of protection, which is intended for a person who has lost his or her faculties. Unlike the mandate of protection, the power of attorney takes effect immediately, whereas the mandate of protection takes effect when you are declared incapable following the homologation process of the mandate of protection. In principle, a power of attorney ceases to be valid when the court recognizes your incapacity. This is when the mandate of protection comes into play, or when a guardianship of full age is opened in the absence of a mandate of protection.
Is the power of attorney questioned or validated prior to use?
It's important to know that, even with a notarized power of attorney, there may still be questions that need to be answered, in order to protect those involved.
Here are a few examples:
It is quite possible that the person who will be transacting via the power of attorney will contact you to ensure that the power of attorney has not been revoked, or that the forthcoming transaction is in accordance with your wishes, for example, the sale of an immovable. This situation often arises because the power of attorney is outdated.
Financial institutions impose stringent requirements on their staff. Take, for example, the opening of a new account. The institution must verify the identity of the account holder, not just that of the proxy. Certain laws or regulations may limit the power of attorney. In addition to the notarized general power of attorney, it is preferable to complete the bank power of attorney form.
Your representative has been representing you for years with your institution, and all of a sudden transactions are blocked. Your proxy doesn't understand, and your institution replies that it has no obligation to justify itself, particularly in view of the protection of personal information, which is its prerogative. They may have doubts about your cognitive capacity, as the power of attorney lapses in the event of intellectual incapacity. It may also be that your institution has doubts about your vulnerability to financial manipulation, or that dubious transactions carried out by your attorney may appear on your account.
The advantages of a notarial power of attorney
Notwithstanding the above statements, the notarized general power of attorney has many advantages.
Here are some of the situations in which a power of attorney may be useful:
Consult your notary, who will be able to draw up the special or general power of attorney best suited to your needs.
For more information our website on this subject.
Do you have any questions?
Consult a notary or make use of free or low-cost legal resources available in Québec.
