Power of attorney for incapacity: planning ahead
The purpose of the power of attorney for incapacity
The power of attorney for incapacity (art. 360-369 CC) allows anyone with capacity of judgment to appoint one or more individuals or legal entities to take care of their personal affairs, manage their assets, and represent them legally, in case they should one day become incapable of judgment.
The form of the power of attorney
The document must be written entirely by hand, dated and signed by the person granting it, or drawn up by public deed (art. 361 CC). A merely typed and signed document does not meet the formal requirements and is not valid, except via the notarial route.
Validation by the adult protection authority
When the incapacity of judgment of the person who granted the power of attorney actually occurs, the adult protection authority checks that the document was validly drawn up, that the appointed person is suitable to carry out their task, and validates the power of attorney, which then takes effect. The authority can, in certain cases, exercise oversight over how the power of attorney is carried out.
How it relates to patient directives
The power of attorney for incapacity concerns the management of personal and financial affairs; it is distinct from advance patient directives, which specifically concern medical decisions and desired or refused treatments in the event of incapacity of judgment, governed by their own provisions of the Civil Code.
Frequently asked questions
Does the power of attorney for incapacity need to be handwritten?
Yes, unless drawn up by public deed: a handwritten power of attorney for incapacity must be written entirely by hand, dated and signed by the grantor (art. 361 CC).
When does the power of attorney take effect?
Only when the grantor's incapacity of judgment actually occurs and the adult protection authority has validated the document after checking its validity and the suitability of the appointed person.
Does the power of attorney for incapacity replace advance patient directives?
No, these are two distinct, complementary instruments: the power of attorney concerns personal and financial affairs, while advance directives specifically concern medical decisions.