A power of attorney in English-speaking countries is a process in which you name someone to make decisions for you in the future if you become unable to do so.
It involves either finances and property or health and welfare, or both.
The equivalent in France is the mandat de protection future.
However, there are also two simple procedures related to bank accounts or healthcare – procuration and naming a personne de confiance – that you can also use.
What is the difference between a mandat de protection future, procuration and naming a personne de confiance?
A person can sign a form for their bank designating someone who can also manage their account – a procuration.
Similarly, anyone going into hospital can write a letter to the hospital, or complete a form, designating a personne de confiance. This can also be done in other contexts, such as a letter to a person’s GP.
Read also: Make end-of-life wishes known with a French ‘living will’
The mandat de protection future is more wide-ranging and allows people to plan ahead, avoiding a judge having to rule on tutelle or curatelle. These are similar but are imposed when a person becomes incapable of making decisions for themselves.
The mandat de protection future is a contract designating one or more people whom you wish to take responsibility for looking after you and/or all or part of your property. It comes into effect if your health declines to the extent that you need help.
If they believe it is necessary, the designated mandataires apply to a tribunal judiciaire (or tribunal de proximité) local court, with a medical certificate, to activate it.
Is a notaire required to draw up a mandat de protection future contract?
The contract states the powers conferred and can be drawn up with or without the help of a notaire. The notarised version confers greater legal powers, such as the ability to sell a home.
English-speaking notaires can be found via notaires.fr.
Setting up a notarised mandat usually requires everyone’s presence, ie. the elderly person and intended mandataires (those who will have power of attorney). Some notaires allow mandataires who live abroad to accept their duties without coming to France, with help from a foreign lawyer.
It is an option, if there are significant assets in the UK and France, to consider arranging both a UK lasting power of attorney and the French mandat. While, in principle, both countries recognise each other’s arrangements, the two are most effective on their respective sides of the Channel.
A mandat has to be set up while the person is able to make their own decisions, as opposed to a procedure called habilitation familiale. The latter is intended to be relatively simple to set up and, once in place, does not require continuing input from a judge, unlike the similar curatelle and tutelle.
All of these are set in motion by an application to a judge, using the same form.
It can only be used by one or more close family members (child, parent, sibling...) or a spouse or civil partner. It can be set up conferring specific powers – not including making gifts and bequests – or, if the judge thinks it is justified, general powers covering all acts of daily life, including sale of property and access to bank accounts.
Read also: Who can I appoint as my power of attorney in France
When and how can the contract be invoked?
It can be invoked where a person is no longer able to express their own wishes due to mental or physical decline. You need to obtain a medical certificate from a doctor from a list supplied by the public prosecutor (procureur de la République). Some courts have it on their website.
It is activated on request to the juge des contentieux de la protection (a judge) at the tribunal judiciaire or tribunal de proximité, depending on which type you have locally.
Supply a form, copies of identity documents for the elderly person and the person making the request, a birth certificate copy for the elderly person and the medical certificate.
The judge will call in the elderly person and check there are no objections from family members.
The process is allowed only where the judge is satisfied it is a necessity and where an alternative –such as habilitation du conjoint, where the spouse is empowered to represent the person and act in their name– is not suitable. It usually lasts up to 10 years (renewable) but a judge can end it at any point in the case of difficulties.
What judicial protection measures are in place?
Several measures come under a heading of protection juridique (judicial protection).
Sauvegarde de justice is short-term – no more than a year, renewable once – and it allows someone to stand in as a representative for certain acts. It might avoid the more complex curatelle or tutelle, or be an initial stage before one of those. It might be ‘medical’ – set in motion by a doctor – or ‘judicial’, in which case the process is similar to habilitation familiale but can be requested by a wider range of people, including in-laws and friends.
The judge appoints one or more mandataires spéciaux to carry out specified tasks for the person, who otherwise retains their ordinary rights.
Curatelle is to protect an adult who, while not incapable of acting for themself, needs to be advised or checked on about certain acts of daily life.
It can be activated if sauvegarde de justice is deemed insufficient. The judge names one or more curateurs, who might have different responsibilities.
In curatelle simple, the person is assisted only for ‘important’ acts, such as taking out a loan. The curateur must consent.
Curatelle renforcée is more comprehensive – the curateur receives the person’s income into a special account and manages their expenses.
In curatelle aménagée, the judge lists which acts the person can carry out on their own and which they cannot.
It typically lasts five years at most, renewable once. It can be renewed for up to 20 if the person’s difficulties seem permanent.
Tutelle might replace curatelle if necessary where an adult’s condition requires that someone else take responsibility for them continually, though the judgment might specify which acts the protected person can still carry out on their own.
It lasts five or 10 years and can be renewed for up to 20 years.
In curatelle renforcée and tutelle, curateurs/tuteurs must make an inventory of the elderly person’s possessions and investments and start keeping a management account of incomings and outgoings.
These roles have significant responsibilities, and it is recommended to draw up a budget and also check the elderly person is receiving all the benefits they are entitled to.
Where can further assistance be found?
There is a useful tool at mes-aides.gouv.fr. You can obtain model documents and information from the greffe (office) of the judge at the court.
Most departments also have an assistance service for tuteurs, often run by a body called the Udaf. Its national body has information on its site.
It is possible to take out insurance against making an error in managing the person’s affairs. Speak to your usual insurer, or contact the Association Nationale France Tutelle.
Read also: French wills and inheritance: what if we die together with no executor?
