Due to age or illness, many people may no longer be able to make decisions for themselves and their property. However, if the legal protection measures allow their relatives to take over, they are long and tedious to put in place, especially since it is necessary to go through a judge.
A simple but little-known alternative, the future protection mandate allows you to anticipate the management of your old age yourself.
Do without the judge
Rather than being faced with a fait accompli, any capable adult individual can write such an act in order to designate, in advance and with their signed agreement, one or more people who will look after their interests if their condition deteriorates.
This contract, in force since 2009, does not require the intervention of the judge since it is carried out under private signature or by notarial deed, and it does not cause the person who establishes it (the principal) to lose either rights or legal capacity. However, when the time comes, it will allow the agent to make decisions concerning the latter’s personal life (health, accommodation, travel, leisure, etc.) or his assets, according to the delegated powers.
According to the mission’s report on the development of this system, some 4,600 future protection mandates were in progress in 2018.
Although drafting on plain paper is possible, provided that the mandate is countersigned by a lawyer, it is better to opt a minima for the model form available online on the Service-public.fr site (cerfa n ° 13592), then have it registered with the Tax Office of the principal’s domicile, to avoid any subsequent dispute (125 euros in costs). The ideal, however, is to call on a notary who can advise you and allow you to give more powers to your representative.
Within the framework of a mandate carried out under private signature, the management of the assets is limited to the only acts of administration. Therefore, it is possible to sign a lease but not to sell a property. Conversely, a notarial mandate can authorize the agent to carry out acts of disposal, such as a real estate sale or the realization of a financial investment.
The future protection mandate can be revoked or modified at any time, as long as it has not taken effect.
When the person’s state of health deteriorates, a doctor entered on a list drawn up by the public prosecutor must then draw up a medical certificate stating his incapacity, so that the representative can then have the mandate endorsed by the registry office. judicial tribunal (former district court) and implements it.
A supervised mandate
A future protection mandate is by no means a white card. The principal defines himself, in the act, the methods of control and the persons who will be responsible for it. The agent must thus establish an inventory of assets, report each year on his mission and draw up an asset management account. In the event of a notarial act, the notary must also notify the guardianship judge of any action which he considers contrary to the interests of the principal. Moreover, any person can take legal action to challenge the decisions of the agent or to have the mandate completed by a judicial measure.
It should be noted that a 2015 law provided for the publication of the future protection mandate in a special register, in order to promote the dissemination of this mode of protection. But the necessary Council of State decree has still not been published in 2020.