Incapacity, Protection Mandate, Power of Attorney – The services of a notary are very extensive and his role is often essential in terms of legal advice, formalities of many life events and especially in the drafting of legal documents. Among the latter, we find the drafting of a notarized power of attorney and the drafting of a protection mandate (namely in anticipation of incapacity in the past). While both affect the management of our assets by another person, they differ widely in scope and purpose.
A protection mandate is an official document in which a person (the principal) designates one or more persons (the mandatary(ies)) to take care of him (medical care to be provided to him) and of his property in cases of incapacity and also specifies the extent of their powers.
As for the power of attorney, it is a mandate or power given by one person (the principal) to another (the agent) to act in his name, particularly with regard to the management of his assets or part of that -this.
Protection mandate in case of incapacity and notarized power of attorney – Aims and scope
The scope and purposes of a protection mandate are different from those of a power of attorney. Indeed, the latter is generally temporary and mainly affects asset management. The principal must travel or receive care for a certain period of time. He chooses an agent to take care of his property or he delegates part of the management of his assets for a specific time. The power of attorney is prepared shortly before the event or circumstances that motivate it.
On the other hand, since the protection mandate in the anticipation of incapacity designates a person who will be called upon to make decisions on behalf of the mandator when the latter is no longer able to express his wishes, it has a greater scope and prepares while the principal still can.
The main elements that make up these documents
At the very least, the power of attorney includes:
- Effective date and duration of the mandate;
- The name of the principal;
- The name of the agent;
- The task(s) to be performed by the mandatary and the conditions;
- The principal’s signature.
Protection mandate in case of incapacity and notarized power of attorney The protection mandate, for its part, contains more details. It lists information on the mandator and mandatary and the relationship between them; whether there are other proxies; what roles each of them will have; who will take care of the person and who will administer this or that property and other important concerns. Provision is also made for other proxies in the event of abandonment or incapacity of the designated proxies. Thus the protection mandate is prepared longer in advance, well before the circumstances of incapacity arise precisely because of the intended purpose: that of expressing our wishes while we can still do so.
Your notary is in the best position to answer your questions and your needs regarding the drafting of any of these documents. Consult it.
Incapacity, Protection Mandate, Power of Attorney.The Chambre des Notaires of Quebec.
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