The protection mandate in anticipation of incapacity is a written document (a notarial act en minute or in the presence of witnesses) by which a person, called the mandator, clearly designates another person, called the mandatary, to act on his behalf and take care of his/her or his/her property, if, one day, he/she became incapable to take care of himself/herself or to administer his/her property. There are several advantages to making such a document.
Mandatary and Their Roles
Those who choose to draft a notarial protection mandate may choose the person or persons who will take care of them if they become unfit. There may be one or more mandatary, who can play this role. In addition, they may have a specific role (taking care of the person or administer the property).
At the same time, in the protective mandate, the mandator can specify the medical treatment he wishes to receive. Finally, if the mandator has minor children, a mandatary may also be named as a tutor.
Simple or Full Administration
If a mandatary takes care of the person’s possessions, the mandator can specify whether there will be a simple or full administration. A simple administration is to keep the goods and keep them as they are.
However, full administration gives all the powers to the mandatary. He can do whatever he wants with the goods of the mandator (ex.: sell his properties). Therefore, regarding the management of goods, it’s necessary that the mandator should have a good relationship of trust with his mandatary.
For both the mandator and the mandatary, contingencies may arise. One day, mandatary may waive his role and can no longer take care or administer the property of the mandator who became incapable. In the event of this, it will be possible for the mandator to designate alternate persons to perform the role of the mandatary.
Not having a substitution clause, in the above situation, can transform the protection mandate in a document with potentially no value. In this situation, it is the opening of the protection regime that will have to be put in place.
No more money worries!
If the incapacitated person has a spouse, the incapacitated person’s financial institution can give a hard time to the spouse if a protection mandate has not been made before. Thus, the spouse may be deprived of financial resources if the couple had a joint bank account. Having a protection mandate gives the spouse the chance to have access to the assets of the incapacitated person and to be able to access the money if necessary.
The notarial protection mandate remains a major asset if someone becomes unfit one day or the other. It allows designating one or more mandatary who will have specific roles in the care of the incapacitated person or the administration of his property.
A property mandatary may have a simple administration (retention and maintenance) or full administration (all powers). A mandator may also appoint a replacement if the mandatary can no longer take care of the incapacitated person. A protection mandate provides spouses with access to financial resources as the bank can easily block the assets of the incapacitated person.
In any case, having a notarized protection mandate in case of incapacity is a valuable document if we want to take care of us and our family in the future, because we never know what the future holds!
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