Power of attorney equivalents

A British Lasting Power of Attorney is a process whereby you name someone to make decisions for you in the future if you become unable to do so. It involves either or both finances and property or health and welfare. The equivalent in France is the mandat de protection future.

However there are also two simple procedures related to bank accounts or healthcare – procuration and naming a personne de confiance - which you can also use.

A person can sign a form for their bank designating someone who can also manage their account – a procuration.

Similarly, anyone going into hospital can write a letter to the hospital designating a personne de confiance, who can help them with formalities and who will be consulted if they cannot express their wishes. This can also be done in other contexts, such as a letter to a person’s GP.

The mandat de protection future is more wide-ranging and allows people to plan ahead avoiding a judge having to rule on tutelle or curatelle (these are similar but are imposed when a person becomes incapable of taking decisions for themselves).

The mandat de protection future is a contract designating one or more people who you wish to take responsibility for looking after you and/or all or part of your property. It comes into effect if your health declines to the extent that you need help.

If they believe it is necessary, the designated mandataires apply to a tribunal judiciaire (or tribunal de proximité) local court, with a medical certificate, to activate it.

The contract states the powers conferred and can be drawn up with or without the help of a notaire. The notarised version confers greater legal powers, such as the ability to sell a home.

English-speaking notaires can be found via notaires.fr. 

Setting up a notarised mandat usually requires the presence of everyone concerned, ie. the elderly person and intended mandataires [the people who will have power of attorney]. Some notaires allow mandataires who live in the UK to accept their duties without coming to France, with help from a UK solicitor.

It is an option, if there are significant assets in the UK and France, to consider arranging both a UK lasting power of attorney and the French mandat as, while in principle both countries recognise each other’s arrangements, the two are most effective on their respective sides of the channel.

A mandat has to be set up while the person is able to make their own decisions, as opposed to a procedure called habilitation familiale. 

The latter is intended to be relatively simple to set up and once in place does not require ongoing input from a judge unlike the similar curatelle and tutelle (all of these are set in motion by an application to a judge, using the same form).

It can only be used by one or more close family members (child, parent, sibling...) or a spouse or civil partner and can be set up conferring specific powers (not including making gifts and bequests) or, if the judge thinks it is justified, general, wide-ranging powers covering all the acts of daily life including sale of property and access to bank accounts.

It may be invoked where a person is no longer able to express their own wishes due to mental or physical decline.

You need to obtain a medical certificate from a doctor from a list supplied by the public prosecutor (procureur de la République). Some courts will have this on their website.

It is activated on request to the juge des contentieux de la protection (a judge) at the tribunal judiciaire or tribunal de proximité (depending on which type you have locally) supplying a form, copies of identity documents for the elderly person and the person making the request, a birth certificate copy for the elderly person and the medical certificate.

The judge will call in the elderly person and check there are no objections from family members. 

The process is only allowed where the judge is satisfied it is a necessity and where an alternative such as habilitation du conjoint (where the spouse is empowered to represent the person and act in their name) is not suitable. 

It usually lasts up to 10 years (renewable) but a judge can end it at any point in the case of difficulties.

Several measures come under a heading of protection juridique (judicial protection). Sauvegarde de justice is short-term (no more than a year, renewable once) and allows someone to stand in as a representative for certain acts. 

It may avoid the more complex curatelle or tutelle, or may be an initial stage before one of those. It may be 'medical' – set in motion by a doctor, or 'judicial', in which case the process is similar to habilitation familiale but can be requested by a wider range of people, including in-laws and friends. 

The judge appoints one or more mandataires spéciaux to carry out specified tasks for the person, who otherwise retains their ordinary rights.

Curatelle is to protect an adult who, while not incapable of acting for themselves, needs to be advised or checked on with regard to certain acts of daily life. It may be activated if sauvegarde de justice is deemed insufficient. 

The judge names one or more curateurs (they may have different responsibilities). In curatelle simple the person is only assisted for 'important' acts, such as taking out a loan (the curateur must consent). 

Curatelle renforcée is more comprehensive – the curateur receives the person's incomes into a special account and manages their expenses.

In curatelle aménagée the judge lists which acts the person can carry out on their own and which they cannot.

It typically lasts five years maximum, renewable once (it may be renewed for up to 20 if the person's difficulties seem permanent).

Tutelle may replace curatelle if necessary where an adult's condition requires that someone else take responsibility for them continually (though the judgment may specify which acts the protected person can still carry out on their own). It lasts five or ten years and may be renewed for up to 20 years.

In curatelle renforcée and tutelle, the curateur(s)/tuteur(s) have to make an inventory of the elderly person's possessions and investments, within three months, and start keeping a mangement account of incomings and outgoings. 

These roles have significant responsibilities, and it is recommended to draw up a budget and also check the elderly person is receiving all the benefits they are entitled to (there is a useful tool here). 

You can obtain model documents and information from the greffe (office) of the judge at the court. Most departments also have an assistance service for tuteurs, often run by the Udaf (its national body has useful information in French).

It is possible to take out an insurance against making an error in managing the person's affairs. Speak to your usual insurer, or contact the association France Tutelle.