The Extrajudicial Protection Mandate: For Whom and Why?

The term “extrajudicial protection mandate” sounds a little far-fetched to your ears? Understandably, but yet, behind this technical jargon hides a very useful tool, especially when it comes to preparing your succession. So, what is the actual meaning of these three words? For whom is it intended and, above all, when and how to use it? 

Extrajudicial protection mandate: could you please repeat?

You may wonder what an extrajudicial protection mandate actually is. In fact, it is simply a tool that allows you to mandate the person of your choice to manage your estate as well as “yourself” on your behalf, should you no longer be able to do it yourself (because of your age or your health). This person is thus in charge of your extrajudicial protection. 

By the way, this should not be confused with the judicial protection. Indeed, while both forms of protection have the same purpose, which is to assist and represent someone that is “incapacitated”, the judicial protection requires the intervention of the justice of peace, who will appoint the person in charge of the protection. As for the extrajudicial protection, it takes the form of a mandate, where the person establishing the mandate is free to choose his/her “trusted person(s)”. The justice of peace may only interfere as a last resort. 

 

Establishing an extrajudicial protection mandate: why, when and how?

Why?

Because anticipation is always a good idea! Indeed, we tend to associate “incapacity” with extreme situations, severe handicap or diseases that appearing at a later stage in life, such as Alzheimer or senility. Yet, anybody could suddenly become “incapacitated”, whatever the age : because of an accident (a road accident, for example), an aggressive disease, memory losses... In such cases, you would certainly prefer to have had the chance to choose the person making decisions “on your behalf”! Those decisions may concern two major aspects of your life:

  • Your estate: your bank operations, your income management, the sale of one of your real properties, the payment of your debts... ;
  • Your person (as of March 2019): the nursing home where you could stay, the care that you need, your decision regarding donating your organs... 

 

When?

We would say: asap! Obviously, there are some stages in life where we could never imagine establishing such a mandate. Yet, every adult person can decide to seek extrajudicial protection. Only one condition applies: the mandating person (protected by the mandate) must be able to express her will when establishing the mandate. 

Yet, establishing an extrajudicial protection mandate doesn’t mean that you stop making decisions at all. You are allowed to limit the competences of your representative to certain fields.

Moreover, you can decide when your mandate becomes effective:

  • Either directly, while you are still “capable”;
  • Or when you become “incapacitated”. It is up to your representative to determine when this moment occurs. Therefore, to avoid misuses, you may add in your mandate that your representative has to prove that you are incapacitated with a health certificate (some experts even recommend specifying that the representative needs to provide two health certificates issued by two different doctors).

You should also know that it is possible to terminate an extrajudicial protection mandate. You simply need to revoke it, on one condition: you should still be considered capable and able to express your will at the time. Such a mandate may also come to an end if your representative is no longer able or does no longer wish to carry out this function. In that case, it is either a replacement representative that takes over, the function or, if no replacement had been named,  the justice of peace will appoint another person. Finally, the justice of peace may also decide to terminate the mandate, totally or partially, if it believes that it does not meet the interests of the mandating person or that judicial protection seems more appropriate to the situation. 

 

How?

You have two possibilities in order to establish an extrajudicial protection mandate:

  • By private deed (directly with your representatives);
  • Via a notary, who will draft an authentic act, which is the most common and recommended option.

If you choose to go to a notary, you will benefit from his advice and expertise. Your notary will help you define the details of the mandate, choose your representatives and trusted person(s) carefully and, more importantly, he will check whether your choices really serve your interests. Of course, such expertise and such services always have a cost. On average, you should expect fees between €300 and 500, depending on the complexity of your mandate. 

 

Appointing a representative: how to make the right choice?

How to choose your representative(s)?

The first thing that you should know is that you are allowed to appoint one or more representatives. In doing so, you will be able to assign competences to your representatives depending on the type of act or decision. For example, you may appoint one of your associates to make business decisions and your partner (or your children) to take care of your person. If you appoint several representatives, make sure that your mandate is very clear, to avoid future conflicts.

You should also think of a replacement representative, should your current representative no longer be able or willing to carry out this function. By doing so, you avoid the justice of peace having to appoint someone else. 

 

What if my representative does not respect the mandate?

It may happen that your representative does not always act in your interests. In such a case, one of your relatives, or even your notary, may inform the justice of peace of the situation. It will examine the case and then appoint an “administrator”. If you notice yourself that your representative is not respecting the mandate, you may also terminate the mandate, providing that you are still considered capable of expressing your will.

When establishing your extrajudicial protection mandate, you should thus mention a “trusted person”, to whom your representative will be held accountable, and also to write a statement specifying your preferred choice of administrator, which the justice of peace will have to respect. 

 

Planning your succession: via an extrajudicial mandate?

Of course, the extrajudicial protection mandate may also prove useful when planning a succession. Indeed, this tool can be used to allow a representative to make changes in your marriage agreement or to make donations, for example. You may also set very precise rules regarding what your representative can do: making donations with reserve of usufruct only, respecting the equity between your children or setting a maximum amount for donations, for example.

Please also note that, as of the 1st of January 2021, extrajudicial protection mandates established in Belgium are accepted in some EU countries, which further limits potential issues. 

As you will have understood, it is “never too soon” to think about establishing such a mandate, as it could greatly facilitate your life – and your relatives’ lives – in the future. Do not hesitate to contact the Morning Blue team to ask all your questions and receive advice on the matter.