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Enduring Power of Attorney

Family law & mediation

What is the purpose of the enduring power of attorney?

Enduring power of attorney, incorporated in the Civil Code by the law of 5 March 2007 concerning the review of legal protection of adults, is a voluntary alternative to legal protection measures which allow any person to anticipate, when illness or age prevents them from protecting their interests, the organisation of their own protection or that of a disabled child. This conventional mechanism was strongly anticipated by practitioners.

Its virtues are

frequently highlighted:

01

Both with regards to the freedom of contract, as it offers each party the possibility or organising a "tailor-made" protection, by appointing the representative of their choice and clearly defining their tasks.

02

And to legal certainty, as it allows a legal statute to be determined beforehand for a period when the person in the mandate cannot protect their own interests.

What protection
can this mandate offer?

The mandate may be general or specific; i.e. to protect the person and their assets, or, on the other hand, only cover one of the aspects of this protection.

The mandate may be agreed for "oneself" when it enables one person to appoint, in the event that their mental or bodily functions may deteriorate, one or several trustworthy persons to safeguard their interests.

The mandate may be agreed "for others" when it allows parents of a disabled child to appoint one or more persons to ensure the protection of this child when they pass away or are no longer able to look after them.

The task of the person responsible for patrimonial interests of the vulnerable individual varies according to the type of mandate. The latter may, indeed, be agreed by notarised deed (N.B. the enduring power of attorney "for others" must be prepared in this format), or by private deed, dated and signed by the representative and counter-signed by a lawyer or drafted using a Cerfa template.

What are the advantages of a notarised mandate for future protection?

Aside from the usual benefits of the notarised agreement, there are multiple advantages conferred by the notarised mandate.

Firstly, upon drafting of the notarised agreement, the trustee has the support of the notary, who advises them on the utility of certain clauses concerning the terms and conditions of mandate execution, on the consequences of such an agreement, etc. It is clear that such advice may not be given to the person who chooses to complete the Cerfa template.

The usual benefits

Subsequently, and aside from the usual benefits of the notarised agreement (probative power, executory power and ensured conservation of the agreement), lasting power of attorney confers, in theory, the appointed trustee, with extended powers, unlike private powers of attorney. As such, private powers of attorney offer a more restricted protection as the trustee can only perform conservatory actions or everyday asset management.
On the other hand, the notarised mandate, even in general terms, may include all patrimonial agreements that the tutor can accomplish alone or with an authorisation (administrative acts, acts of provision, except a free act of provision which requires authorisation from the guardianship judge). As such, the needs of the persons and the expertise of their notary will best determine the basis of their protection and representation.
Lastly, in terms of its conditions and effects, lasting power of attorney is the equivalent of a guardianship measure, but for which the guardianship judge is mostly absent. The major role entrusted to the notary is meant to compensate for this absence, all the more so as the trustee is obliged to provide them with the annual accounts. The notary also has the power to seize the guardianship judge for any movement of funds, unjustified actions or non-compliance with the provisions of the mandate.