Mandate in case of incapacity

Everyone is at risk of having an accident, an illness or disability that could interfere with earning an income, paying bills and tracking investments. It is widely believed that a power of attorney is all it takes to name a person to take care of these duties if an accident or illness occurs. Wrong! A power of attorney is not valid when the signer is declared incapacitated. To choose a person to act on your behalf, you need a mandate in case of incapacity.

Types of mandates

There are two types of mandates in case of incapacity:

• the private signature mandate: this mandate is written and signed before two witnesses who do not have an interest in its content;
• the mandate by notarial act: this mandate is registered with the Registre des mandats de la Chambre des notaires, which makes it easier to retrieve and apply the will at the appropriate time and which eliminates the risk of the will being lost or disregarded.

Responsibility of representatives

You may designate two representatives:

• a legal representative to ensure care of the person, to see to it that your wishes regarding your health care are respected; this person may be your spouse or your friend;
• a legal representative to the administration of property, to manage your personal affairs; this person may be someone close to you, but if your assets are complex to manage, you may designate a professional asset administration service.

The legal representative to the administration of property may receive a simple administration mandate (which generally includes income collection, bank account administration and bill payment) or a full administration mandate, which enables him/her to make important decisions such as selling your assets.

The mandate in case of incapacity can also indicate the treatments you would and would not accept should you become unable to clearly and freely consent to the care in question (living will).

Making changes to your mandate

Once your mandate is signed, you can make changes to it as long as you remain fit.