MANDATES IN FRANCE

As a Lawyer, I meet people every day who have lost a relative or become concerned by their future and the possibility of losing the capacity to deal with their own affairs. In England it is possible to anticipate and curb a problem by signing a Lasting Power of Attorney. Alternatively, we may create a trust to administrate those assets posthumously. In France,neither of these forms existed until two recent Laws were passed, which introduced a form of Power of Attorney (mandate) with the purpose of providing the flexibility to organise and administrate a person’s assets or estate.

Life is like a box of chocolates, you never know what you are going to get. Why, I hear you ask, am I using this most famous of phrases from the film Forrest Gump for this month’s article?


As a Lawyer, I meet people every day who have lost a relative or become concerned by their future and the possibility of losing the capacity to deal with their
own affairs. In England it is possible to anticipate and curb a problem by signing a Lasting Power of Attorney. Alternatively, we may create a trust to administrate those assets posthumously. In France, neither of these forms existed until two recent Laws were passed, which introduced a form of Power of Attorney (mandate) with the purpose of providing the flexibility to organise and administrate a person’s assets or estate.

The first of these mandates resulted from the Law dated 23rd June 2006, which came into force on the 1st January 2007. The result was the introduction of a mandate called mandat a effet posthume.

The mandat a effet posthume allows a person to organise the administration of their estate and assets after their death. In principle, the estate will be inherited by the heirs but administrate by a mandatee. The mandat a effet posthume is a solution to release some of the beneficiaries’ concerns or worries when somebody else is appointed to guide and assist them.

To be valid, the mandat a effet posthume must comply with several conditions. Primarily, a legitimate and serious reason for the mandatory must be self-evident in order for one to be set up. Secondarily, the mandat a effet posthume must be signed in front of a Notaire and accepted by the mandatee before the death of the mandator. This mandate would be recommended when the deceased owns a company and feels that his heirs, especially if they are novice, do not know how to run the business. An experienced mandatee could guide them for the duration of the mandate.

The second mandate created by the Law is the Mandat de protection future, introduced by Law dated 5th March 2007. It allows for the nomination of an
Attorney during an individual's lifetime, who will act on that individual’s behalf in the case of his mental or physical deterioration.

As of 1st January 2009 anyone is now entitled to organise their own or their children's (under 18 years old or more subject to conditions) legal protection or care by nominating a third party to look after the financial assets for the individual when they lose their capacity.  The mandat de protection future can be conducted in an individual’s interest or on behalf of another’s interest.

The format of the mandate is flexible. The individual can either sign it informally or in a more formal format in the presence of a French Notaire.

The informal mandate will be handwritten by the individual and duly signed and dated. The Attorney will also have to sign it in order to show his acceptance, his powers can be limited to that of administrative duties (actes conservatoires) and non-disposal acts (actes d'administration) unless the mandate expressly extends these. 


Those with UK Enduring Powers of Attorney should not be concerned since the introduction of the Hague convention 13th January 2000 on the 1st January 2009 in France. The only requirement to apply the Enduring power of attorney is its registration with the UK authorities.

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