In order to anticipate his death or his inability to manage his personal and professional wealth, two types of power of attorney : the future protection mandate and the posthumous power of attorney.
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The power of attorney for future protection for business manager
What is the role of the powers of attorney for future protection?
Read the sheet about the power of attorney for future protection.
The power of attorney of future protection also allows the entrepreneur, concerned with the durability of his business, to appoint in advance one or more agents responsible not only for the protection of his person, but also the management of his professional heritage.
What are the terms of the power of attorney for future protection when it affects the management of professional property?
The management of a company can not suffer any waiting period and often requires the establishment of acts of disposition (sales of operating items, pledge, renewal of commercial lease ...). The notarial form of the power of attorney is therefore recommended because only the authentic act is of immediate application and confers broadened, but controlled powers to achieve these objectives.
When the the power of attorney affects to professional property, remuneration may be provided, which will require the performance of the agent and will incur liability in case of non-performance. If the company is operated as a company, the agent takes the place of the mandator, without limits: he takes part in the assemblies, votes, manages the company ... But the head of company may wish to provide counterpowers to its management and this, in the very wording of the power of attorney.
Posthumous power of attorney
What is the role of the posthumous power of attorney for entrepreneur?
Ordinary power of attorney terminate upon the death of the principal. Accessing a recurring request from notaires, the legislator has conceived the posthumous power of attorney primarily intended for the heads of enterprises, which takes effect on the day the ordinary power of attorney expires. This power of attorney can also be useful in the presence of a vulnerable heir (for example a major under guardianship). The posthumous power of attorney came into force on July 1, 2007, making it possible to provide for the transfer and administration of estate property for the account and in the interest of one or more identified heirs by one or more several trusted thirds.
What are the general conditions of the posthumous power of attorney?
A serious and legitimate interest: "The power of attorney is valid only if it is justified by a serious and legitimate interest with regard to the person of the heir or inheritance inheritance, precisely motivated" (Article 812-1-1 of the French Civil Code).
The attorney can be an heir. It may be a natural or legal person (company). He must enjoy his full physical capacity and not be prohibited from managing when professional property is concerned.
The mandate is given for a period of two years extendable one or more times by decision of the judge, seized by an heir or the agent. However, it may be given for a period of five years, extendable under the same conditions, because of the incapacity, the age of the heirs or the heirs, or the need to manage professional property (Article 812-1- 1 of the French Civil Code).
Unless otherwise agreed, the posthumous warrant is free. The mandate may, however, provide for remuneration.
What are the conditions of a posthumous power of attorney when it deals with the management of professional property?
The entrepreneur thus designates during his lifetime the person most able to manage his business in the event of death, pending the sharing or sale. The establishment of such a mandate will be different depending on whether the business is operated in individual form, where the agent will be in charge of operating the sole proprietorship, or in a company where the agent will exercise the prerogatives of a partner. (voting rights at the General Meeting).
The agent appointed by the company manager represents the heirs and manages the company on their behalf. Particular care must be taken in drafting the mandate to ensure the security of the heirs. The agent is not liable for the debts of the holding. The heirs alone bear the debts of the company and the profits are taxable in their name. However, he can be held liable in case of proven management fault.
When the company is operated as a corporation, the posthumous mandate only applies to the principal's social rights.
The conditions allowing the attorney to access the assemblies being met, he will have limited powers to the administration and management of property dependent on the estate. But the mandate must also allow him to take the leadership of the company. It is therefore necessary to appoint him as a new leader and this, in a relatively short time to avoid the paralysis of the company. Certain statutory clauses will have to be adapted.
What is the form of the posthumous power of attorney?
The power of attorney must be written by a notaire. As long as the heirs have not accepted the succession, the mandatary can only perform conservatory or supervisory acts (pay debts, pay taxes for example). Once the heirs have accepted the succession, his powers are more extensive (for example rent a building, have maintenance work done).
What are the posthumous agent's obligations?
Each year, the mandatary reports on his management to the heirs.
Note: If the principal has also appointed an executor, his decisions take precedence over those of the posthumous attorney.