The mandate for future protection

In recent decades, many laws have been given a mandate by which an adult designates someone to look after them or manage their property when they are no longer able to do so.  We speak of a mandate of incapacity, a springing power of attorney or even a mandate for future protection in France.  This is a private measure of protection, not judicial, but the guardianship judge remains very involved.

 The future protection mandate is a contract by which a person of full age (or emancipated minor) who has full capacity entrusts one or more people to represent him in the event that, in the future, he could no longer provide for his own interests. That is to say in case of deterioration of mental faculties or impairment of bodily faculties such as to prevent the expression of the will.  The alteration of these faculties must be medically ascertained before the implementation of the mandate.

 Purpose of the mandate

 The mandate may be aimed at the protection of the person and / or his property.  In the absence of clarification, the agent performs both missions.

 It is often appropriate to appoint one agent to take care of the protection of the person and another to take care of the management of the assets.

 The principal may also instruct the agent to be the interlocutor of the doctors when it comes to making decisions concerning his health.  Guidelines for end-of-life care can thus be included in the mandate.

 The agent

 One or more representatives can be appointed, and optionally one or more substitute representatives.  They accept the mission in the mandate, or by a subsequent deed.

 The proxy is usually a natural person such as a family member or close friend.  The representative can also be a legal person registered on a special list of judicial representatives.

 The future protection mandate is exercised free of charge unless otherwise stipulated.

 Form of mandate

 The mandate can be concluded by private deed (i.e. by lawyer’s deed, or by using a regulated model) or by notarial deed.

 Actions that may be performed by the agent

 If the future protection mandate is concluded by deed under private signature, the agent can only carry out protective acts and administrative acts.

 If it is concluded by notarial deed, the agent can also make the deeds of disposal.

 However, certain acts can only be performed with the permission of the judge.

 Acts require authorization from the judge :

• Primary and secondary residences should be kept as long as possible.  If alienation of the residence becomes necessary, it must be authorized by the judge.  And if the purpose of the act is to accommodate the adult in an establishment, it is necessary to provide the judge with a doctor’s certificate attesting that the person will no longer be able to stay in his residence;
• The closing of a bank account that was in the name of the protected adult before the implementation of the mandate or the opening of another account in a new bank;
• acts of free disposal such as donations.

 The implementation of the mandate and the obligations of the agent

 The future protection mandate takes effect when it is established that the principal can no longer provide for his or her interests alone.  To this end, the mandatary submits the mandate (an authentic copy for the mandate by notarial deed) and a medical certificate to the court clerk’s office attesting that the mandator is no longer able to provide for his interests on his own.

 The clerk stamps the mandate and dates its entry into force and then returns it to the mandatary.

 Then the agent makes an inventory of the goods.  He will establish an annual management account and update the said inventory.

 When the mandate has been concluded by notarial deed, the agent must, every year, submit to the notary who established the mandate, the inventory then its updating and the management account.  The notary ensures their conservation by depositing them in the rank of his minutes.  If the notary perceives a movement of funds, an act that is not justified or does not comply with the stipulations of the mandate, he must notify the guardianship judge.

 End of future protection mandate

• The mandate ends with:
• the re-establishment of the personal faculties of the protected  person,
• the death of the protected person or his placement under a judicial measure of protection (tutorship  or curatorship),
• the death of the mandatary or his incapacity,
• the dismissal of the agent pronounced by the judge when the execution of the mandate is likely to harm the interests of the principal.

 The mandate for future protection in international matter 

 France ratified the Hague Convention on the international protection of adults concluded on January 13, 2000. The domestic legislation on mandate for future protection and the Hague Convention entered into force in France on the same day, i.e. on January 1.  2009.

The reception of future protection mandates is governed by Article 15 of this convention. According to this article, a mandate established in accordance with the law of the residence of the protected adult may produce its effects in France.  The same will apply when the mandate has been established in accordance with another expressly designated law provided that it is the law of nationality or the law of the previous habitual residence of the protected adult.

 And a person living abroad can validly establish a mandate governed by French law for the management of his property located in France.