This allows any person to organise their eventual dependence by appointing an agent who will be responsible for managing their income and daily life.
This mandate can be established for oneself or for others. It is open to all adults who are not subject to protective measures and to parents of a child with a disability who wish to prepare for the child’s future after their death.
The agent
This can be any natural person or a legal person registered on a list of legal agents for the protection of majors.
The extent of their powers primarily depends on the will of the mandator and the form of the mandate.
If it is concluded in private, it will be established according to a model defined by decree or countersigned by a lawyer.
A notarial deed is obligatory in the case of a lasting power of attorney for others.
Execution of the mandate
- In the event of a private deed, the agent shall be accountable to the guardianship judge.
- When the mandate is notarised, the agent sends the accounts and the supporting documents to the notary every year, who may notify the guardianship judge of any suspicious act or movement of funds.
The mandate for oneself is implemented when the person concerned is unable to express their will, a condition which must be evidenced by a medical certificate from a doctor chosen from a list drawn up by the Public Prosecutor.
The mandate for others will be opened on presentation of a death certificate for the mandator. An inventory of the assets of the person to be protected is then drawn up.
Moreover, the fact that it is drafted by the notary provides a certain security that gives the agent greater leeway in executing their mandate. They may, for example, proceed with a sale. On the other hand, gratuitous acts, such as donations, will require the approval of the guardianship judge.
The mandate established by a private deed is more limited. It authorises the agent to perform protective or day-to-day acts such as taking out home insurance.
Whatever the case, the agent must have accepted the mandate, and their acceptance takes the same form as the mandate.
Worth knowing:
Anyone interested can appeal to the judge to challenge implementation of the mandate. This can end the mandate and open a protection measure such as wardship or guardianship, for example. Or, on the contrary, maintain the mandate but add a complementary measure, if it does not sufficiently protect the interests of the mandator.
Reference text
Order of 23 December 2009 on the lasting power of attorney Article 477 et seq. of the French Civil Code