A power of attorney is a kind of contract. It lets you name one or several people to act for you.
Important! A power of attorney is different from a protection mandate (used to be called “madante in case of incapacity.”
The person who accepts to act for you under a power of attorney acts in your name in situations you have described. For example, Rosalie could make a power of attorney and name her brother, Rock, to collect rent, pay bills and sign a contract of sale for her cottage.
Here is some important information to include in a power of attorney:
- date and length of the power of attorney
- name of the mandator (the person who gives the power of attorney)
- name of the mandatary (the person who accepts the power of attorney)
- the tasks the mandatary will do and instructions on how to do them
- mandator’s signature
So in Rosalie’s situation, it is important to specify that Rock can only act for her while she is away and only for the acts listed in the power of attorney.
Does a power of attorney have to be written?
A power of attorney can usually be verbal or written. However, it must be written in certain cases. To withdraw money from a bank account or to sell a building, for example, the power of attorney must be clear and written, to avoid abuse. Imagine someone showing up at your bank to withdraw money from your account, supposedly in your name, without a written document! To protect you, professionals and institutions require precise, written powers of attorney regarding what your mandatary can do.
A power of attorney can also be made with the help of a notary or lawyer.
When can you give someone a power of attorney?
You can give someone a power of attorney to represent you when you cannot do something yourself. This might be because of distance, a trip, scheduling problems, a physical disability, old age, etc. To give someone a power of attorney to represent you, you must have the legal capacity to do this. This means you must be an adult (18 or over) and have the mental ability to agree to and understand all the implications of the power of attorney.
A power of attorney should not be confused with a protection mandate (formerly a “mandate for incapacity”). In a protection mandate, you name someone ahead of time to act for you in case you become incapacitated. Incapacity means that you are unable to care for yourself or your affairs. In a protection mandate, you name a mandatary to look after your physical and mental well-being or your property. Different rules apply. Important! If you hire someone to provide a service, for example, to get professional advice or to have a renovator do renovations, this might be considered to be a “contract for services.”
Who can act as a mandatary?
Any adult can act as a mandatary. However, be sure that you trust the person you name!
A mandatary can also be a professional. This can be a good idea when it comes to complicated matters. For example, you can name an accountant to sign a document on your behalf, or a lawyer to represent you in court.
Does a mandatary have to be paid?
No, but it can encourage someone to accept to act for you! Also, when a power of attorney is given to a professional, she can insist on being paid for her services.
What are the mandatary’s responsibilities?
A power of attorney is a contract between the person who gives the powers (the mandator) and the person given the powers (the mandatary). The mandatary therefore has responsibilities. Here are the responsibilities:
- personally carrying out the power of attorney herself, unless it says that it can be delegated (given to someone else to carry out)
- obtaining, when necessary, the help of another person to carry out the power of attorney, unless the power of attorney says that this is not allowed
- acting with prudence and diligence, which means acting like a trustworthy person would in the same situation
- being honest and loyal towards the mandator, which means acting in the mandator’s best interests and avoiding conflicts of interest
- informing the mandatory of progress made in carrying out the power of attorney
- notifying the mandator and informing him about how the power of attorney was carried out
What are the responsibilities of the person who gives a power of attorney?
The mandator (person who gives the power of attorney) also has responsibilities towards the person she named as mandatary. Here are those responsibilities:
- collaborating with the mandatary so that she can carry out the power of attorney properly
- giving money in advance or reimbursing money needed to carry out the power of attorney, with interest on that money
- paying the mandatary, if the power of attorney provides for this
- compensating the mandatary for any loss she suffers while carrying out the power of attorney, as long as the loss was not caused by the mandatary’s fault
Also, the mandator remains responsible for contracts made and acts done by the mandatary as long as the mandatary acts within the limits of the power of attorney. For example, Rosalie gives her brother, Rock, a power of attorney to repair the banister of her rental property. Rock fixes it badly and a tenant hurts himself. Rosalie will be responsible along with Rock for dangers caused by the work, because Rock was carrying out the power of attorney.
Are you responsible for things done by someone pretending to be your mandatary, or who is no longer your mandatary?
If someone is pretending to be your mandatary, and there has never been a power of attorney between you, you are not responsible for her acts.
However, if she used to be your mandatary, you can be held responsible for her acts in the following situations:
- You let people believe that the person is still your mandatary when this is not the case.
- You did not put an end to the power of attorney and notify the people your mandatary dealt with while carrying out the power of attorney.
Also, if your mandatary does things while carrying out the power of attorney and these things could not have been postponed or were necessary to avoid a loss, you will be responsible for anything the mandatary does, even if you had put an end to the power of attorney.
For example, Marco decides to put an end to the power of attorney he gave to his lawyer, Catalina. Despite this, she files a defence in court that she had already prepared so that Marco would not miss a deadline. Marco only had 1 day left to file his defence. Even though the power of attorney had already ended, Catalina has a right to be paid her professional fees for filing the defence.
What if a mandatary acts beyond the powers she was given?
If the mandatary acts beyond the powers given to her in the power of attorney, she might be responsible for her actions towards the people with whom she made commitments, unless the person who gave the power of attorney approved these actions.
For example, while collecting rents, Rock notices that the plaster on the ceiling of one of the apartments is flaking and decides to hire a mason to fix it. Maintaining the apartments was not one of the jobs Rosalie gave Rock in the power of attorney. Upon her return, she will have the choice of either paying the mason or letting Rock deal with the bill.
Can a power of attorney be automatic?
Yes, in some cases.
The simple fact of being married or in a civil union creates a kind of power of attorney between spouses. One of them can therefore do by herself what is needed to deal with the family’s ordinary needs: buy food, clothes and furniture for the household, hire a plumber to fix a leaking pipe in the bathroom, etc. It is not necessary to have a written document between spouses.
Both spouses are responsible for acts performed by the other. For example, if Rose hires a contractor to fix the roof of the family house, she and her husband will both be responsible for paying the contractor for his work.
Take note! This kind of power of attorney does not automatically exist between de facto spouses.
In Business and Other Partnerships
When two or more people get together and form a partnership, one of the partners can perform an act in the name of the partnership and for the partnership. For example, a partner can buy a photocopier in the name of the partnership for use by its employees. The partners therefore become responsible for acts done by one of them.
Directors, officers and other representatives of a company act as mandataries of the company when they do things to carry out their duties. In these situations, the company is responsible for acts done by its mandataries.
When does a power of attorney end?
A power of attorney ends in these situations:
- an event happens that makes it impossible to carry it out
- the mandator revokes (puts an end to) it
- the mandatary resigns
- the mandator or the mandatary dies
- protective supervision is put into place for the mandator or mandatary
- the mandator or mandatary goes bankrupt
- the power of attorney has a set end date and that date has arrived
- the mandator and the mandatary are finished carrying out all of their responsibilities
How do you end a power of attorney?
You can put an end to a power of attorney any time. You can end it, for example, if your mandatary does not carry out the power of attorney properly.
To protect yourself and to avoid having your mandatary continuing to act in your name, you can ask your mandatary to give you back the power of attorney and write on it that it has ended. Your mandatary can require you to give him a copy of the power of attorney with this statement on it. It will be proof for both of you that you withdrew the power of attorney.
If the power of attorney was made before a notary or lawyer, notify her that you want to end it. She will then take care of writing a mention on it that you have ended it.
You can also notify people who dealt with your mandatary that the power of attorney has been withdrawn. For example, if Rosalie lets her brother, Rock, withdraw money from her bank account to pay her bills, Rosalie can notify the bank that she has put an end to her brother’s power of attorney.
Be careful! If you do not have a serious reason to end a power of attorney and ending it could cause harm to your mandatary, you could be held responsible for that harm.