The “mandat pour cause d’inaptitude” (lasting power of attorney)”? Here is a truly technical term. What then is this? This is a new type of power of attorney by which a person who has “all his/her faculties” wishes to make provision in advance for the time when this may no longer be the case, by appointing the person who will then require to administer his/her affairs.
Currently, in such cases, people concerned are confronted with more administrative procedures (curatorships, guardianships etc.), which are not always greatly appreciated.
Since the start of 2013, in the event of the loss of capacity, it is possible to have our affairs administered by the person from our family or social circle who we have chosen ourselves, thanks to the lasting power of attorney.
In order to ensure the validity of the power of attorney, anybody concerned would be well advised to approach the notary whom he/she trusts and to have the notarized form of the power of attorney that he/she intends to grant put in place.
Another innovation with effect from 2013: anyone can also draw up “directives anticipées du patient” (patient’s advance directives) in the event that they would no longer be in a state to express their intention, following an illness or an accident. These are directions addressed to the medical profession pertaining to the treatments that he/she would or would not want to undergo, together with the persons who may be consulted in order to decide upon a treatment or even with visiting rights.
The following sections deal more specifically with the lasting power of attorney.
The lasting power of attorney may have as its object personal assistance, the administration of assets or even representation in legal relationships with third parties. The granter should therefore ensure that he/she properly describes the tasks entrusted and instruct and inform the attorney concerning any terms and conditions that will be useful in executing the power of attorney.The Attorney
The granter may appoint one or more attorneys (natural persons and/or legal entities). As with all types of power of attorney, it is subject to acceptance by the attorney(s). The granter would hence be well advised to provide solutions for replacement in the event of refusal or incapacity of an attorney, or even in the event of subsequent resignation.
When the Adult Protection Authority (APA – autorité de protection de l’adulte) learns that someone has become incapable, it makes enquiries with the Civil Status Office (office de l’état civil) to find out if the latter has granted such a power of attorney; where applicable, it examines whether this power of attorney has been validly constituted, whether the conditions for its implementation have been fulfilled, whether other (supplementary) measures to protect the adult are to be taken and whether the attorney has accepted the power of attorney and is fit to act.
The attorney represents the granter within the limits of the power of attorney and diligently performs his tasks. This is especially true in the case of administration of an asset. In the event of a dispute arising from the context of the power of attorney or of a conflict of interest between the granter and the attorney, the latter shall immediately request the APA to intervene.
In order to avoid any trouble, the granter would be well advised to set the principles for the attorney’s remuneration in the power of attorney. It goes without saying that remuneration and the reimbursement of proven expenses are borne by the granter.
For as long as he/she enjoys capacity (or should he/she regain it), the granter may revoke the power of attorney at any time in one of the forms provided for its constitution or by destroying the deed. It should be noted that any power of attorney replaced by a new power of attorney of the same nature is automatically cancelled, unless the new power of attorney only consists of a clear addition to the previous one.
The attorney may resign the power of attorney with immediate effect for just cause or, in the absence of specification of cause, following a period of two months by informing the APA of his/her decision in writing.
If you wish to grant a lasting power of attorney to a close relative, your swisNot network member notary is well placed to advise you in detail and to guide you through the process.
Geneva/Berne, 1st March 2013