The future protection mandate allows anyone to organize their possible future dependence, physical or mental, or that of a loved one, through tailor-made legal protection, without losing their rights and legal capacity. Parents can also use a future protection mandate for their child with illness or disability.
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In what cases is the drafting of a future protection mandate useful?
This is a contract which can be freely entered into, as it makes it possible to organize in advance the personal, physical, and mental protection of a person and/or his or her assets or that of their child, may the latter be sick or disabled.
In practice, you can choose the person who shall take care of yourself (management of travel, leisure, vacations, spiritual accompaniment, etc.) and/or their property (legal protection) on the day you can no longer do it yourself due to physical or mental faculties preventing the expression of your will.
The person who establishes the mandate shall retain all his rights despite the alteration of his faculties and will be represented by an agent, in whom he has complete faith.
For oneself or the other
Two types of mandates exist:
- the protection mandate for oneself, which can be signed by any adult or emancipated minor, not subject to a guardianship or family authorization, to have their patrimony or person managed by one or several people the day when you shall no longer be able to provide for your own interests, due to an impairment of your faculties,
- the protection mandate for others, which can be signed by the parents of a minor child over whom they exercise parental authority or of an adult child for whom they have material and emotional responsibility at the time of signing the mandate. The latter must be suffering from an impairment in his faculties preventing him from expressing his will. This type of mandate must be drawn up in notarial form and it will only be opened upon the death of the parents or as soon as they are unable to carry out their mission.
It should be noted: If a future protection mandate has been put in place by the parents of a minor child for the benefit of the latter, the future protection mandate will not begin until he or she is of age. Before this date, the rules of legal administration apply.
Future protection mandate: notarial act or through private signature?
This mandate is rounded off:
- through a notarial act, which allows the agent to be given extended powers since he can carry out important property acts such as, for example, selling a home. However, selling the main or secondary home requires a judge’s approval.
- under private signature, with more limited effects, the agent being able to take only decisions necessary for the proper management of the assets. It can be done under two forms: the one of the standard model, which is defined by decree and established by private act countersigned by a lawyer.
If it is possible to establish a mandate under private signature, the notarial future protection mandate must be privileged in order to benefit from a notary’s advice, from a certain date, the extended powers granted to the agent, and management control of the agent when the mandate is implemented.
Who can be the agent?
A loved one, a professional or an establishment
You can designate as agent:
- any natural person around them (child, spouse, partner, etc.).
- a professional representative, natural person, or legal person, but this must be registered on the list of legal representatives for the protection of adults, updated by the prefect, available in the prefectures and the courts. Theoretically speaking, only professional representatives are remunerated.
The appointed agent need not be related to the principal. However, it cannot be either the protection litigation judge (former guardianship judge) or the clerk. He must enjoy his full civil capacity and fulfil the same conditions as being a tutor. The agent must specify in writing that he accepts his task. He can only be offloaded of his duties through the authorization of the protection litigation judge.
One or several agents
It is possible to entrust the protection of his person and his property to a single agent, to separate the tasks, by assigning them to two or more agents.
Note: the plurality of representatives requires careful drafting of the powers of each, to avoid any dispute over their respective skill.
The subsidiary agent
It is encouraged to proceed through the outset with the designation of a subsidiary agent (under the same conditions as the main agent), because the sole retained agent can always waive his powers by notifying his intention to the principal and the notary, to be revoked or even die or lose its capacity.
What are the monitoring measures?
The various measures
The agent is subject to accounting checks that are spread over time:
- while assuming office, the latter must have an inventory of the principal's assets carried out,
- every year, he must report on his task, to the person who is responsible for supervising the carrying out of the mandate, the notary in the case of a notarial mandate or the person designated by the principal in the case of a private mandate. Any interested party can refer the matter to the protection litigation judge, in the event of difficulty while carrying out the mandate. In the case of a notarial mandate, the notary can report to the judge, in terms of any unjustified breaches or non-compliancy with the mandate.
It should be noted: it is in good practice to appoint a management controller whose mission will be determined by the mandate.
The agent’s responsibility
The agent's liability may be called into question in the event of poor performance, insufficiency or failure while carrying out his mission. If he is found liable for damage, he may be ordered to compensate the principal or his heirs. The judge will be more or less demanding depending on whether he is a professional or not.
What are the consequences of the mandate?
As long as the principal retains all his faculties, the mandate has no effect. It can be modified or revoked by the principal. As for the agent, he can still give up his mission.
Establish a medical certificate
When the mandatary finds that the principal's state of health no longer allowing him to take care of himself or tending to his affairs, he takes the required steps for the mandate to take effect. He requests an approved doctor, registered on the list drawn up by the public prosecutor, to examine the principal and draw up a medical certificate confirming the impairment of faculties. The mandate can be activated on the person or on the patrimony, or even both, depending on what shall be specified in the medical certificate.
Verified by the court registry
The agent goes in person, accompanied theoretically by the principal, to the registry of the judicial court of the principal's residence. He mainly presents the mandate and the medical certificate. After checking that the conditions provided for by law (in particular age) and the required documents are in keeping with the law, the clerk affixes his endorsement, to the mandate and returns it to the agent who can then implement the latter.
Following which?
In practice, the mandatary presents this mandate to third parties to act on behalf of the mandator, when need be, in his daily life and to administer his property; but the principal retains the capacity to carry out these acts himself if he wishes and if his state of health allows to do so. Note: the advantage of the authentic mandate is that it cannot be lost and that the notary can issue as many authentic copies as necessary.
How does it end?
The mandate comes to an end if:
- the principal regains his faculties.
- the principal is placed under curatorship or trusteeship or dies.
- the mandatary is placed under protective measures, ends up in personal bankruptcy or dies.
The role of the protection litigation judge
The protection litigation judge may terminate the mandate, at the request of any person, which can be presented in writing without any special form to the judge, if he finds that:
- the principal hasn’t gone through an impairment of faculties and that it is through mistake or by fraud that the mandate was implemented.
- or the carrying out of the mandate harms the interests of the principal (for example, the agent is no longer understands what needs to be done to help him).
What is the point of combining a mandate with a general notarial power of attorney?
A warrant or power of attorney allows a person to give power to another person to do something on their behalf. These are therefore identical acts. A power of attorney can be special for a particular matter or a general one, concerning all the affairs of the principal. The notarial form must be favored so that it is drafted under the best possible legal conditions.
A power of attorney is only valid as long as the principal possesses all of his faculties.
The future protection mandate, a follow-up
The future protection mandate (a special form of mandate) allows, under legal conditions that are more protective of third parties, to take over when the principal no longer has all of his faculties. This mandate lasts for the principal’s life span, except if it ends, due to the reasons mentioned above.
What is the point of a future protection mandate compared to a judicial protection measure?
A customized measure
Unlike other legal protection measures (safeguard of justice, trusteeship, guardianship), the future protection mandate does not deprive the person to be protected of their legal capacity, which is a source of serious legal uncertainty for third parties who shall deal with him.
End of the mandate by placing under a trusteeship or curatorship measure
The future protection mandate was created to facilitate the management of the principal's property and patrimony. It also avoids establishing a procedure of curatorship, guardianship, safeguard of justice, or even family authorization, but it ends by placing the principal under one of the measures mentioned before.
Does the future protection mandate require a judge?
The future protection mandate must be respected by the judge. This is now the priority mode of protection. Therefore, a protection measure (curatorship or trusteeship) can only be ordered by the judge, if need be and when the interests of the person cannot be properly provided for by the future protection mandate, rounded off by the person concerned.