Facing a decline in one’s own physical or mental abilities, or those of a loved one, is always a difficult ordeal. That’s why, in such a situation, it’s essential to surround yourself with the right people and to anticipate any resulting loss of autonomy, both in legal and financial terms. Still relatively unknown, and certainly under-utilized, the mandat de protection future is the legal instrument that enables people to anticipate a loss of capacity likely to lead to their being placed under guardianship or curatorship, by entrusting, in advance, certain powers to one or several trusted third party(ies).
In many aspects, the mandat de protection future is the French equivalent of the English or American lasting Power of Attorney.
It is therefore useful to present this mandate to our English-speaking audience, who often wonder about the private protection measures offered by French law.
What is the mandat de protection future?
The mandat de protection future allows a person, referred to as the “donor” (or”mandant” in French), to designate in advance one or more individuals, called the « agent(s) » (or « mandataire(s) » in French), to represent them when they are no longer able to express their will or manage their interests, assets or look after their own interests.
By signing this deed, the donor is not deprived of his or her rights, nor of his or her capacity to perform legal acts. They are simply assured that, on the day when their loss of autonomy is medically ascertained, due to a decline in physical or mental faculties, they will automatically be assisted and/or represented by freely designated relatives.
What is the scope of the mandat de protection future?
The donor freely determines the scope of the mandate. They can, at their discretion, designate an agent to assist them in their personal life, help manage all or part of their assets, or both.
The donor can also assign the assistance in their personal life and the management of their assets to two different agents.
The larger the assets in question (property or financial value) or the more complex the estate (assets located in several countries, for example), the more precise the mandate will need to be, anticipating potential administrative difficulties while minimizing the risk of litigation.
Who can be designated as an agent?
The donor can designate any adult or emancipated minor of their choice, provided that the person is not under guardianship or curatorship and has not been subject to a prohibition on holding guardianship responsibilities. This can be a family member, a close friend, a professional (notary, lawyer), etc.
The donor can also designate a legal entity listed on the list of judicial representatives for the protection of adults, which can be consulted at the local prefecture.
The agent(s) must expressly accept the task assigned to them and personally execute the mandate, except when calling on third parties for certain acts related to the management of the assets.
The donor may choose to remunerate or compensate the agent, but the mandate may also be entirely free of charge.
What are the obligations of the agents?
The agent(s) are required to act solely in the best interest of the donor.
The extent of their obligations is determined by the donor and defined in the mandat de protection future.
In any case, the agent is obligated to maintain a regularly updated inventory of the donor’s assets, to prepare an annual account of their management, and to keep this inventory and the last five management accounts available.
What is the form of the mandat de protection future?
The mandat de protection future can take the form of a private deed or a notarized deed.
The private deed can be created either by filling out a standard CERFA form, which must then be registered with the tax office at the donor’s place of residence, or in the form of a document countersigned by an attorney. In the latter case, the attorney will draft the mandate and, by signing it, will officially confirm its date and authenticity.
More importantly, by asking a lawyer to draft the mandate, you ensure that the deed will be precisely tailored to your situation and needs, notably by clearly defining the powers of the agent(s). It also facilitates the execution of the mandate and limits the risk of disputes that may arise during its execution, particularly by providing mechanisms for control suited to the circumstances and ensuring full information for the parties regarding the legal consequences of the mandate.
When does the mandat de protection future take effect?
The mandat de protection future takes effect only when the deterioration of the donor’s physical or mental faculties is confirmed, which may occur several years after its signature.
The agent(s) then notify the donor of their intention to implement the mandate. They must then, accompanied by the donor, go to the court registry in the donor’s place of residence to present the mandate, along with a medical certificate issued within the last two months, attesting to the deterioration of the donor’s physical or mental faculties.
The mandate takes effect when the registry affixes its stamp. Once the mandate is activated by the registry, only the judge handling protection disputes (juge des contentieux et de la protection in French) can modify or terminate it.
What protections for the donor?
The donor must designate a person responsible for overseeing the execution of the mandate and set the conditions under which the agent(s) must report on their management.
The agent(s) may be held liable in the event of improper execution or fault in carrying out the mission, and they may be ordered to compensate the donor for any harm caused.
Additionally, anyone, whether close to the donor or not, can petition the judge handling protection disputes if they believe that the conditions for executing the mandate are not being met or if it becomes necessary to provide further protection for the donor.
When does the mandat de protection future end?
The mandat de protection future that has not yet taken effect can be revoked at any time by the donor, and the agent(s) may renounce it under the same conditions.
However, once the mandat de protection future is activated through the registry, it can only be terminated in the event of the donor’s recovery of their faculties, the donor’s death, the placement of the donor under protection, the death of the agent(s), or if the mandate is revoked by the judge overseeing protection disputes.
Conclusion
The mandat de protection future is a valuable tool for proactively and calmly preparing for a potential decline in your mental and physical abilities.
This deed will be all the more effective if it is perfectly adapted to your situation. Citizen Avocat assists its clients on a daily basis in securing their assets and estate plan . We are at your disposal to help you draw up this mandate, particularly in international situations involving cross-border issues.
