Accidents, illness or simply the weight of years can lead to incapacity, making it difficult to manage daily life. To avoid legal complications and ensure that your wishes are respected, the future protection mandate, introduced by the law of March 5, 2007, offers a personalized and secure solution. It enables you to prepare for any eventuality in advance, by appointing a trustworthy person to provide the necessary protection according to pre-defined measures.
To protect family and property
The future protection mandate is an essential tool for taking preventive measures by choosing in advance one or more trusted persons to look after your personal affairs and assets in the event of incapacity. For example, it is possible to entrust the management of real estate assets to a family member, while designating another close relative for day-to-day affairs. This approach offers protection tailored to individual needs.
In addition, the mandate for future protection allows specific measures to be taken for the protection of a minor child or a disabled child of full age. This legal flexibility is particularly valuable for families seeking to ensure continuity of care and management of the special needs of their loved ones.
Controlling your future
What's more, the future protection mandate avoids the need to resort to often lengthy and complex legal measures. In the absence of a mandate, it is up to the courts to appoint a guardian or curator to manage the incapacitated person's assets. By drawing up a mandate, you can bypass this procedure and ensure rapid management in line with your wishes.
A notarial deed for greater security
Although the mandate for future protection can be drawn up privately, it is strongly recommended that it be drawn up by a notary. The involvement of a notary ensures greater legal certainty and enables more extensive protective measures to be established. For example, a notarized mandate can enable the mandatary to carry out important acts of disposal, such as the sale of real estate, that would not otherwise be possible. The use of a notary is crucial when the protection of significant assets is at stake, or in complex cases such as the management of an investment portfolio. When it comes to protecting a disabled child of full age, a notarial mandate is essential for optimum protection. Thanks to the notary's expertise, the mandate is drawn up according to the rules of the art, reducing the risk of disputes or misinterpretations, thus guaranteeing effective protection in the event of incapacity.
Choosing the mandatary
The mandator may appoint a person of his or her choice as mandatary. This could be a close relative such as a spouse, partner, cohabitee, friend or even a more distant family member. It is also possible to appoint a professional, such as a notary or lawyer, to ensure that acts are carried out with professional rigor.
However, if the mandate has been drawn up in notarial form, the notary who authenticated the deed cannot be appointed as mandatary, to avoid any conflict of interest. The choice of a mandatary requires careful consideration, as he or she takes on a mission of trust, making important decisions. The mandatary must fulfill his or her obligations diligently, following the terms of the mandate, while reporting on his or her management, usually annually, to a person designated by the mandator or to the guardianship judge.
These protective measures are put in place to ensure that the mandatary meets his or her obligations and acts in the best interests of the principal. In the event of problems in the execution of the mandate, any person concerned, including the protected person, may appeal to the guardianship judge. The latter has the power to dismiss the mandatary and take additional measures to ensure the protection of the vulnerable person's interests.
The effects of the mandate and its modifications
The protection mandate takes effect when a medical certificate attests to the mandator's incapacity to manage his or her affairs. This document is drawn up by a doctor registered on a specific list defined by the public prosecutor. This ensures a rigorous and objective assessment of incapacity, thereby reinforcing the protection of the mandator.
In the context of a mandat pour autrui, as when parents appoint a mandatary for the protection of their child, the mandate takes effect on the death of the parent or in the event of incapacity to care for the child. These measures offer real peace of mind to parents, especially those with children in vulnerable situations. This legal protection is essential to anticipate and manage incapacity situations, while ensuring optimum protection for vulnerable people.