Safeguard your assets with a power of attorney outside court

A power of attorney outside court is a legal tool that allows an individual to preemptively designate one or more trusted persons to manage their assets should they become unable to do so themselves. Although relatively straightforward to set up, it enables a seamless financial future planning and is a key component of successful estate planning.

What is a power of attorney outside court?

It's a preventive measure designed to protect vulnerable individuals without the need for court intervention. The grantor appoints one or more agents to manage their assets when they're no longer able to do so themselves. This mechanism offers a flexible alternative to more restrictive judicial protection and allows for autonomy in managing one’s property, even in case of capacity loss.

Why establish a power of attorney outside court?

This type of power of attorney serves several essential purposes:

• Anticipating potential incapacity due to age, illness, or accident
• Organizing asset management according to one’s own wishes
• Avoiding a cumbersome and less personalized judicial protection process
• Maintaining control over who will manage your assets and how
• Preserving family harmony by clarifying your wishes in advance

By clearly defining the rules for managing your assets in case of incapacity, you ensure the continuity of your financial affairs according to your own criteria.          

How to set up the power of attorney?

Setting up a power of attorney outside court can take two main forms:

• Private deed: a simple written document, dated, and signed by the grantor. This less costly option also offers fewer guarantees.
• Notarized deed: provides superior legal security and allows for the inclusion of specific transactions, such as the sale of real estate. The notary also verifies the grantor’s capacity when establishing the mandate.

Registering the mandate

Regardless of the chosen form, registering the mandate in the Central Registry of Mandate Contracts (CRMC) is highly recommended. This formality allows the mandate to be enforceable against third parties, its visibility for legal professionals and the avoidance of unnecessary judicial protection measures.

Essential elements of the mandate

The mandate should at least include:

• Full identity of the grantor and the agent(s)
• Date of signing
• Scope of powers granted to the agent(s)
• Modalities of exercising the mandate
• Conditions for its activation

When to establish a power of attorney outside court?

Various situations can justify setting up such a mandate:

• Diagnosis of a neurodegenerative disease (Alzheimer’s, Parkinson’s, etc.)
• Advanced age, even when in good health, as a precautionary measure
• High professional risks that could result in incapacity
• Complex assets requiring continuous management and expertise
• Willingness to maintain family harmony by clearly designating a responsible person

When does the mandate take effect?

Unlike other protective measures, a power of attorney outside court does not require a judge to be activated. It takes effect when the grantor’s incapacity becomes evident, at their request and/or possibly based on a medical certificate attesting to the incapacity. The grantor may also specify in the mandate specific conditions for its activation. The mandate can therefore perfectly remain inactive: it’s a protective measure in case of incapacity. This flexibility is one of the key advantages of the tool, enabling a smooth transition in asset management.

What is the scope of the mandate?

A power of attorney outside court can cover various types of acts involving different kinds of assets:

• Acts of representation: allow the agent to act on behalf of the grantor. For example, signing documents, conducting banking operations, or renewing contracts.
• Acts of management: involve daily administration of assets, such as paying bills, collecting income, managing rentals, etc.
• Acts of disposal: for more significant acts like selling real estate, a notarized deed is usually required, with specific instructions on the conditions of these transactions. These acts may involve movable property (bank accounts, investment portfolios, life insurance, etc.) and immovable property (primary and secondary residences, rental properties, etc.)

Whom to entrust with the mandate?

Choosing the agent is a critical decision that deserves careful consideration. Common options include:

1. Spouse: a natural choice in many situations
2. Children: a frequent solution, especially in the absence of a spouse
3. Siblings: a relevant alternative depending on family structure
4. Cascade structure: first the spouse, then the children if the first is incapacitated
5. Multiple agents: option to appoint several people, acting jointly or separately

Regardless of your choice, prioritize a person of absolute trust, competent in financial management, available long-term, and familiar with your values and preferences.

What should be specified in the mandate?

To avoid conflict or ambiguity, your mandate should specify:

• Priority order of agents if you appoint multiple
• Collective decision rules for certain acts (e.g., for transactions exceeding a certain amount)
• Exact scope of the mandate: which assets, what types of acts
• Agent’s reporting obligations (frequency of reports)
• Any specific prohibitions (like selling certain items with sentimental value)
• Conditions for the agent’s remuneration, if applicable

Can an agent make a donation on behalf of the grantor?

This question is particularly sensitive. Generally, the agent can make donations on behalf of the grantor only if the mandate is established by a notarized deed and if this possibility is expressly provided for in the mandate. Conditions of the donations should also be clearly specified. Without these precautions, donations made by the agent could be contested later by the heirs.

When does the mandate end?

A power of attorney outside court can end under several circumstances:

• Death of the grantor: automatic end of the mandate
• Recovery of the grantor: if the incapacity was temporary
• Judicial decision: if a judge finds that the mandate does not sufficiently protect the grantor’s interests
• Agent’s renunciation: possible with notice and justification
• Revocation by the grantor: as long as they remain capable

Can the agent receive remuneration?

Yes, the agent may receive remuneration for their mission, provided that this remuneration is expressly provided for in the mandate, with the amount or calculation method clearly defined, and that the remuneration remains proportionate to the workload and complexity of the mission. In the absence of details, the mandate is presumed gratuitous, but the agent may still request reimbursement of expenses incurred.

Conclusion: Plan ahead to better protect

In asset management, anticipation is key. Beyond estate planning, which concerns what happens after your death, it’s equally essential to plan the management of your assets in case of temporary or permanent incapacity. A power of attorney outside court fits perfectly within this approach: it ensures continuity in managing your assets according to your wishes and in your best interest, even when you’re no longer able to make your own choices.

Easyvest supports you throughout your investment journey, including protection and transmission of your wealth. Don’t wait to secure your future and that of your loved ones: contact us for personalized advice on this essential asset protection tool.