Thanks to their legal expertise, notaries can advise you on the content of a power of attorney. They can also draft it for you according to your objective.
A power of attorney allows a person to act on your behalf. A power of attorney is for a person of sound mind, whereas a protective mandate is for a person who has lost their faculties.
Are you going on a trip? Do you have to stay at the hospital? Someone can take care of your affairs and administer your property during this time. Your spouse, one of your children or a trusted friend can do it. All you have to do is sign a document known as a power of attorney or mandate.
What should the power of attorney provide for?
A power of attorney allows you to designate a person, called the mandatary, to act on your behalf in certain circumstances. It may provide for a series of acts for which you wish to entrust responsibility to your mandatary. A power of attorney allows you to designate a person, called the mandatary, to act on your behalf in certain circumstances. It may provide for a series of acts for which you wish to entrust responsibility to your mandatary.
If you leave the country for some time, you may allow the mandatary to carry out acts for you that you would normally do yourself. For example, paying your rent or mortgage instalments, making certain banking transactions, renewing your insurance, etc.
It is always best to clearly delineate the powers of the mandatary. You would then be authorizing them to act only for a specific purpose. For example, a mandate may only be for the sale of your property under the conditions you have set. The mandatary must then only perform the acts necessary to achieve this goal.
You can include an accountability clause in a power of attorney.
Do not confuse a power of attorney with a protection mandate in case of incapacity
The power of attorney and the protection mandate in case of incapacity should not be confused. The power of attorney is only intended to temporarily compensate for a person’s physical impossibility to take care of their affairs, for example during an extended stay abroad. In principle, the power of attorney ceases to be valid when the court recognizes your incapacity. The power of attorney may also be revoked at any time by the mandatary.
A protection mandate is a document in which you choose one or more people to take care of you and your property if you are declared incapable by the court.
The power of attorney is only for the management of property and affairs and may not be used for decisions relating to medical and personal care.
Powers of attorney may only be used for the management of property and affairs. A power of attorney cannot be given for medical and personal care decisions. For example, you can give someone power of attorney to negotiate your residential lease, but they would not be able to decide where you want to live.
Wishes regarding consent to medical and end-of-life care may be included in a protective mandate and/or advance medical directives.
It is possible to cancel a power of attorney at any time. A revocation must be signed, and preferably notarized.
The term may be stated in the power of attorney. If not specified, the power of attorney will remain in effect until:
- Tutorship is instituted and/or a protection mandate is homologated
- The mandator or mandatary dies, if no substitute is appointed
- The power of attorney is revoked
Revoking a power of attorney
A mandator may revoke a power of attorney at any time. Even if the term of the mandate is indicated in the power of attorney, the mandator may revoke a power of attorney before the end of the term.
It is best to make a revocation in notarial form. It contains your declaration that you no longer wish the mandatary to represent you and act on your behalf.
You must then bring it to the attention of your mandatary by sending a copy, preferably by registered mail.
You may require your mandatary to deliver the power of attorney to you to indicate the end of the mandate. For your safety, also notify the financial institutions you deal with of this revocation. If the power of attorney was established by notarial act, it is important to notify the notary who executed it. In the interest of safety, notify the financial institutions you deal with of this revocation.
On peut aussi signer une You can also sign a new power of attorney revoking the old one. In this case, you will have to notify the mandatary and the persons or companies concerned in the same way as for an act of revocation.procuration dans laquelle on révoquera l’ancienne. Dans ce cas, les mêmes démarches de notification que celle d’un acte de révocation devront être effectuées auprès du mandataire et des personnes ou entreprises concernées.
It is strongly recommended that the mandatary be informed of their appointment.
The law does not require the mandatary to sign a mandate or power of attorney. However, by signing them, they acknowledge having read them. With their signature, they also undertake to represent the mandator according to the wishes expressed in the documents.
Although it is not required, it is strongly recommended that the mandatary sign a protection mandate or power of attorney. If the signature takes place before a notary, the latter will be able to explain the legal effects of these acts and ensure that the mandatary understands their obligations and duties towards the mandator.