When should a power of attorney be used?

In what circumstances can a proxy be used?

A power of attorney is a document that avoids the need to go to the office yourself, if you are unable to attend or if you are far away. You give a power of attorney to a third party to sign a document in your place, for example. This must be a person of trust. The following elements must be precisely stated :

• the "principal", i.e. you, and the "proxy": the person to whom you give power of attorney. The full marital status of the parties must therefore be mentioned.
• the commitment in question. You must indicate the acts for which the proxy will have power to act on your behalf.
• the price and the terms of payment of the price if it is a purchase.

A power of attorney can be established for everyday actions, such as picking up a registered letter at the post office or voting in elections . In these cases, you just have to fill in a form and an identity document will be required. Or you can make your proxy online to vote according to a particular procedure. On the other hand, for more involving acts such as selling a property or making a donation, the power of attorney is more regulated. Indeed, when it is a question of giving power to a person to sign a notarial act, for example to sell a property, the power of attorney must be made in writing and drafted with the greatest care. It must be complete so that the consent to the act cannot be questioned. Your notary will carry out this task with the documents in the file. He will make sure that all the elements are included, explain the scope of your commitment and certify your signature.

Do I have a choice between a sub-private power of attorney and an authentic one?

A power of attorney can generally be made under private signature, but the authenticated form may sometimes be mandatory. This is the case when the power of attorney is intended to sign a solemn act (inter vivos donation or conventional mortgage for example). Note that a notarized power of attorney is not necessary to sign a deed of sale of a property, but it is very often drawn up by your notary under private signature. Please note! There are some acts for which you cannot be represented, such as writing your will, signing a marriage contract or making a donation between spouses. These acts require the physical presence of the persons. This is a condition for the validity of the act. According to article 1394 of the Civil Code, to sign a marriage contract, the simultaneous presence of the future spouses is required. It is forbidden to have the contract signed at different times.

What is the scope of powers of attorney?

There are two kinds of powers of attorney:

• The "special" power of attorney which will concern a particular transaction (for example the sale of a property). It will therefore end when the said act has been regularized.
• The "general" power of attorney, on the other hand, covers the management of all the assets of the person's patrimony, within the limits of the current management acts. This can indeed be a good tool when an elderly person gives a general power of attorney to one of his children, to ease his daily life. Beware, this can also turn into a source of family tensions if there are several children! The consultation of all the family members is more than recommended. Vigilance is required for this type of power of attorney because it is necessary to ensure that no action, other than those specified in the power of attorney, has been carried out by the proxy and that he or she has not exceeded his or her duties. Unfortunately, examples of misappropriation of funds for personal use in the case of a power of attorney are not uncommon.

Stephanie Swiklinski