Your Power Of Attorney

                                                                 Your Power Of Attorney

Your Power Of Attorney

Your power of attorney is a very important document. You (the “mandatory”) are giving the person you have chosen (the “mandatory”) the power to manage your money, administer your property and even sell or mortgage your property. Therefore, you should sign this document only for a very specific purpose and for a limited duration; if necessary, you can renew it. You cannot give a power of attorney if you are incapable; you must do so before you become incapable. After you sign a power of attorney, you still retain the power to manage your money and administer or sell your property.

Your Best Protection Is To Monitor Your Affairs

You can revoke (terminate) a power of attorney you have given at any time, for any reason whatsoever. If you revoke an existing power of attorney by signing a new power of attorney, you must give a written notice thereof to your previous mandataries, to the financial institutions where you have your accounts and, to the extent possible, to all third parties with whom your mandatory dealt when representing you. This will prevent someone from accepting the former power of attorney without knowing that it has been revoked.

Your mandatory must exercise the powers you have conferred upon him in accordance with your instructions or, failing specific instructions, in your interest. Therefore, you must provide a specific description of the powers you wish to confer and the purpose of the power of attorney.

Advice to help you choose your mandatory and draft your mandate:

1. Give your mandate to a person who professionally exercises the powers you wish to delegate.

2. Consult a professional for guidance in drafting your mandate. This may be a legal advisor or a person who professionally exercises the powers you wish to delegate. Each professional will act within his area of competence; for example, lawyers and notaries will provide legal advice, accountants will provide financial advice, etc.

3. If you do not want to or cannot follow the preceding advice, you should use the sample power of attorney provided below.

The more significant the purpose of a power of attorney or the greater the value of the property involved, the more it is recommended that you deal with a qualified person who is governed by a legal framework, be it through a professional order or an organization whose mission is established by law. This is true as regards the drafting of the power of attorney as well as its execution.

If you are being pressured by someone to sign a power of attorney, you should consult a qualified person before signing anything at all. At the very least, you should get advice from a person you trust who has no connection to the person or persons putting pressure on you.

If you are declared incapable, your power of attorney will no longer be effective. Consequently, while you are capable, you should prepare a mandate given in anticipation of your incapacity and include in that mandate the elements of any power of attorney you wish to keep in effect after you become incapable.

                                          WHAT IS A POWER OF ATTORNEY?

A power of attorney refers to the power to act of the person to whom the mandate is given as well as the written document evidencing the mandate.

A power of attorney can be special (to deal with a particular business), or general (to manage all of the mandatory’s business).

WHAT IS A MANDATE ?

A mandate is a contract by which a person, called the mandatory, authorizes another person, called the mandatory, to represent him and act on his behalf towards third parties.

You may entrust your mandatory with simple (partial) or full (total) administration of your property. Simple administration will allow the mandatory to handle the preservation and safekeeping of your property while full administration will allow him to do everything with respect to your property, including selling or mortgaging the property.

After you sign a power of attorney, you still retain the power to manage your money and administer or sell your property.

(ANTICIPATING INCAPACITY )

If you are declared incapable, your power of attorney will no longer be effective. This is why you should prepare a mandate given in anticipation of your incapacity while you are still capable and include the elements of the power of attorney that you wish to maintain when you become incapable. If you would like more information about drafting mandates in anticipation of incapacity

UNDER WHAT CIRCUMSTANCES IS A MANDATE GIVEN?

There are many reasons for giving a mandate. The most common are:

( 1 ) Manage a building;

( 2 ) Manage assets (money, investments, property);

( 3 ) Manage expenses (rent, regular bills);

( 4 ) Manage an estate/succession

                               HOW SHOULD A MANDATARY BE CHOSEN? 

(1) Be sure to give the mandate to a person who has the necessary skills to carry it out. One way to ensure this is to deal with a professional or a person whose activities are governed by a legal framework. This will ensure that the person has the relevant training, that his activities are properly supervised and that if difficulties arise, you will be able to get help and advice. You may have access to dispute settlement services and even to a compensation fund in the event of a breach by your mandatory. To know whether you are dealing with a qualified person, you must, from the outset, check whether the person is a member of a professional order 1 or a regulatory body.2 You can do so by contacting the order or organization, and by consulting their website.

(2) If you deal with a professional or a person whose activities are governed by a legal framework, this person will be able to help you draft the mandate you wish to give to him. Even then, it is prudent to seek help from a notary or lawyer. This recommendation is even more relevant if you are not giving your mandate to a professional or to a person whose activities are governed by a legal framework.

(3)  If you cannot or do not wish to give your mandate to a professional and you do not ask for help from a notary or lawyer when drafting your mandate, you should read these explanatory notes carefully and use the attached sample power of attorney.

 (4) If you wish to give a mandate to a person whose activities are not governed by a legal framework, you should give the mandate to a person you know very well and who you trust. That having been said, even if you know the person and trust him, you should take precautions when drafting your power of attorney so as to protect your interests.

(5) If you wish to give a mandate to a person who is not a professional, who is not governed by a statute and who is someone you do not know, at the very least you should insist on obtaining references and do the necessary verifications. In particular, check for any criminal, bankruptcy and insolvency records.

WHAT ARE YOUR PRINCIPAL OBLIGATIONS WHEN YOU GIVE A MANDATE?

You are bound to co-operate with your mandatory to help him fulfill his mandate. You must also reimburse your mandatory for the reasonable costs incurred on your behalf and pay him his remuneration if you have agreed to do so and if it is expressly provided for in the power of attorney.

WHAT ARE THE MANDATARY’S PRINCIPAL OBLIGATIONS?

The mandatory is bound to fulfill the mandate once he has accepted it. He must act with prudence and diligence when performing his mandate. He must also act honestly and faithfully in your best interests and avoid placing himself in a situation of conflict of interests.

During the mandate, your mandatory is bound to inform you, at your request or where circumstances warrant it, of the stage reached in the performance of his mandate.

Your mandatory is bound to fulfill his mandate in person unless you have authorized him to appoint another person to perform all or part of it in his place.

Lastly, your mandatory may not use for his benefit any information he obtains or any property he is charged with administering in carrying out his mandate, unless:

you consent to such use;  such use is permitted by law or by the power of attorney.

Even though you have given a power of attorney to someone, the best way to protect yourself is to regularly and carefully monitor the way in which this person is performing the mandate.

HOW IS A POWER OF ATTORNEY MADE?

If you decide to draft a power of attorney yourself, the following advice will help. In addition, the proposed sample will serve as a starting point to ensure that your power of attorney contains the essential elements. If your financial situation permits, you should seek the advice of a professional, such as a lawyer or notary, in order to draft the power of attorney. The professional will be able to gather all the information required to draft a power of attorney that suits your needs.

Generally speaking, the greater the value of the property involved in the mandate, the more appropriate it is to seek advice from a qualified professional.

Similarly, the broader the powers you wish to give your mandatory, the more important it will be to seek advice allowing you to foresee situations that you might not initially have anticipated.

Lastly, it may be useful to provide for two man dataries to perform certain more significant acts.