Contingency planning with proxies in France

French law presents several types of proxy that may be used in contingency planning.

Besides standard proxies, there are more recently introduced specific proxies, such as the “mandat de protection future” (proxy in case of future incapacity) and the “mandat à effet posthume” (postmortal proxy).

The “mandat de protection future” enables the principal to name a representative who will represent him where he is no longer able to look after himself because his mental or physical capacities have been affected. This proxy entrusts the representative with the protection of the principal or the management of parts or the totality of his property.

Specific proxies between spouses are also available.

The “mandat à effet posthume” takes effect upon the principal’s death. In his lifetime, the principal entrusts the representative with post-mortem management of parts or the totality of his estate on behalf of his heirs. The substance of the estate or the personality of the heir must justify such a proxy. For instance, it may be used to manage a business as long as the heirs have not come of age.

Proxies may be used in various areas. They may concern property as well as other rights.

As far as property is concerned, proxies may be used regardless the type of asset (real estate, share portfolio, etc).

The proxy as a contract must specify the powers entrusted, under the terms set by law for each type of proxy. These terms may differ according to the kind of act the representative is entrusted with and its significance (act of alienation, act of administration, conservatory act).

Regarding company shareholding, the “mandat de protection future” and the “mandat à effet posthume” are of particular interest for the representative who may be entrusted with the voting right for all shareholders assemblies to come. We assume that those two specific proxies make it possible to depart from general company law which dictates that a shareholder is only to be represented at an assembly by another shareholder according to a single-use proxy for each assembly. We advise to adjust the company’s by-laws in accordance.

Regarding the standard proxy, there are no formal requirements. It can be subscribed either in the written form or orally. The written form is to be preferred.

The “mandat de protection future” may be either a deed drawn up by a “notaire” (a solicitor) or a private deed. The latter is either to be countersigned by a lawyer or drawn up using the specific nb13592*04 form. A “notaire”-drawn-up deed is recommended because it enables the representative to perform acts of administration as well as acts of alienation.

The “mandat à effet posthume” must be drawn up by a “notaire”.

The principal’s death usually terminates a standard proxy. However, the contract may stipulate that it will not be so.

A standard proxy may also stipulate that it will take effect as of the principal’s death. Yet, we do not advise such a stipulation as a post-mortem contract must not hinder French estate law public order rules, under pain of being declared void. Besides, such a proxy could be revoked by the principal’s heirs.

We advise the “mandat à effet posthume” to be relied on as it has been introduced for the specific purpose of the post-mortem management of the decedent’s assets.

Should someone not be capable to express his or her will at some point, one may use a written living will to specify his or her wishes regarding the end of life. The stipulations of a living will enable the medical staff and the family and closely related persons to be aware of a person’s last wishes and requests.

It is also possible to appoint in writing a reliable person who will decide on the treatment when one is no longer in a condition to do so for oneself. The reliable person will be the contact person of choice for the medical community, to be seen before the family and closely related persons. His or her view or opinion will guide the medical staff in the decision-making process. He or she may also be entrusted with any living will.

A living will is going to prevail over a reliable person’s view or opinion.

From a legal standpoint, the appointment of a reliable person is considered as a proxy. It will have to be checked that this appointment is compatible with other measures taken by the principal (standard proxy or “mandat de protection future”).

So far, there is no specific legal disclosure requirement regarding proxies.

Concerning the “mandat de protection future”, the law provides for a specific database, but it remains to be developed.

French law provides for specific legal representation regimes such as “curatelle” (curatorship) or “tutelle” (tutorship). One may be appointed curator or tutor in advance and courts must abide by such an appointment.

The appointment of a curator or tutor may be combined with a “mandat de protection future”. It is useful if the “mandat de protection future” terminates, for instance after it has been challenged before courts. A “curatelle” or “tutelle” would then take over with the representative as curator or tutor.