What is a power of attorney?
The Civil Code of Quebec defines the power of attorney as a document whereby a person, the mandator, grants powers to another person, the mandatary, in order to be represented by him.
The lifetime/validity of a power of attorney
The power of attorney is terminated due to the revocation of the mandator, by his incapacity or by his death. Unless an end date is specified within the power of attorney, the document will always remain valid, regardless of the date on which it was signed and of various changes regarding your situation.
Revocation of a power of attorney
This is the ultimate protection measure for the mandator. The mandator/principal may, at any time and without consent from the mandatary, cancel the power of attorney. It is, however, recommended to notify all necessary institutions as well as the mandatary of this revocation. If the power of attorney has been notarized, the mandator must also inform the notary who previously made the document of its revocation.
Power of attorney form
The Civil Code of Quebec doesn’t require a certain form for the power of attorney: it can be notarized or signed in the presence of witnesses or it can simply be signed by the mandator/principal in the form of a letter, for instance.
The notarized power of attorney is without a doubt the preferred form. The mandator will be able to benefit from legal advice and explanations concerning the scope of such a document from the notary, and he’ll also be able to ensure that the power of attorney is created in such a way that it corresponds to his real will.
The general power of attorney
By this document, the mandator gives the mandatary the power and the right to act in his name. This means that the representative or the agent will be able to administer and also to sell all of your goods and assets even without your permission! Extreme caution will be needed before signing such a general power of attorney and before giving such extended rights to another person.
General power of attorney – special or specific power of attorney
The general power of attorney carries more risks, since it grants the agent/mandatary the power to deal with the principal/mandator’s business, including banking, real estate transactions, and also with investments. In addition, the agent/mandatary also has the right to sign documents on behalf of the mandator.
In relation to the general power of attorney, the specific/special power of attorney is a more secure document since its use is restricted. In case of a specific power of attorney, the mandator’s delegation of authority to the representative/mandatary allows him to act on his own behalf only for specific tasks and not in the broad sense of the term. A specific power of attorney may appoint a mandatary only to sign a document or to pay an invoice on behalf of the mandator.
Regarding the protection mandate in case of incapacity, this document allows you to determine who will take care of you and who will administer your assets as a result of illness, or some deficiency or impairment caused by old age which could affect your mental state or your body health.
The person you chose will remain the one who will represent you in case of your incapacity, and not some other person chosen by your family.
It’s possible to unite the protection mandate and the general power of attorney under one single document and use them in a timely manner as the general power of attorney will cease to be valid once you’ve been declared incapacitated. The protection mandate in case of incapacity will be the one used after the obtaining of a judgement which proves your incapacity and confirms the validity of the mandate.
Obviously, the roles of the mandatary are not the same when it comes to the protection mandate in case of incapacity and the power of attorney. In case of the power of attorney, the mandatary’s responsibilities relate only to the mandator’s assets, and this is not in a case of incapacity.
On the other hand, in case of a protection mandate in case of incapacity, the mandatary has responsibilities related to the mandator or/and to the administration of his assets, if the mandator becomes incapacitated.
Bank power of attorney
This kind of power of attorney empowers the mandatary to administer your bank accounts on your behalf.
Advantages of a notarized power of attorney:
- An increased protection of the mandator – If you are a victim of abuse, written documents will prove your agreement and they’ll protect you in your conflict with the mandatary/agent.
- You have a written proof (legal document) – A notarized power of attorney is a legal document which benefits from the presumption of truthfulness regarding its content. By signing such a document and by having it drawn up by a notary, the power of attorney becomes legal proof of the engagement between you and your mandatary/agent.
- It’s a written state of the art document – The notary is your legal advisor and he’ll guide you throughout the process. He is aware of all the implications of a power of attorney, and he’ll be able to draft the document according the law. Thus, you will be certain that the terms of the written power of attorney will really represent your desires.
- Security – The notary must keep a copy of your notarized power of attorney in a safe and confidential place. If you should accidentally lose the document or if you simply want to review the terms of the contract, the notary must grant you full access to the file that concerns you.
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