The protection mandate
September 1, 2014 is an important date: not only was the “provisional administration” transformed into the “administration” as we know it today, but a completely new form of extrajudicial protection was also created. In practice, this protection is known as the “protection mandate”. Its entry into force is no longer new, but experience shows that the protection mandate is still not familiar to everyone. High time for a first introduction!
The protection mandate is no longer an unknown concept in Belgium. It is a form of protection for both young and old, and it can be fully tailored to personal wishes.
With a protection mandate, you anticipate tomorrow’s concerns
You may not immediately think about it, but who will manage your assets if you suddenly become the victim of a traffic accident involving brain injury, or if you begin to suffer from persistent memory loss, or if it all simply becomes too much for you to manage your affairs? You still can and may carry out legal acts yourself. Why is that? Because this is not administration (through the justice of the peace court), but extrajudicial protection (outside the court), which you have fully arranged yourself. You may therefore choose, with peace of mind, to let the protection mandate take effect immediately, even while you are still fit and well.
The protection mandate is a suitable alternative to administration
The way a protection mandate works does not differ that much from administration. The former “provisional administration” has since been reformed into the current “administration”, while the protection mandate is a form of extrajudicial protection.
In the case of administration, the justice of the peace appoints an administrator when, based on your personal circumstances and health condition, he or she determines that you are incapable of acting of your own free will. The administrator likewise manages your assets and may also perform acts relating to your person, while reporting to the justice of the peace. The administrator may be someone from your close family, but it may equally be a professional, such as a lawyer.
Through a protection mandate, the mandatary may also represent you with regard to your assets. In addition, the mandatary may also perform acts concerning your person, such as exercising patient rights on your behalf. Since March 1, 2019, extrajudicial protection can relate not only to the management of assets, but also to personal rights.
The mandatary is not appointed by the justice of the peace, since the protection mandate is an extrajudicial protection measure – in fact a mandate agreement – and therefore in principle does not have to report to the justice of the peace. As a result, you do not necessarily have to be declared legally incapacitated.
The protection mandate, as a form of extrajudicial protection, is closer to the individual and therefore more accessible than administration. It is an agreement, so it is up to you — within the limits of what is legally permitted — to determine when, what and how the mandate is to be structured.
However, the protection mandate does not give the mandatary carte blanche, since the justice of the peace may, on his or her own initiative (but usually at the request of an interested party), exercise supervision and make decisions regarding the performance of the mandate.
A protection mandate that must also remain effective when you become incapable of expressing your will must be registered in time in the Central Register of Mandate Agreements (CRL). Without that registration, the mandate in principle ends as soon as you become incapable of expressing your will.
The protection mandate as a useful addition to your will
Finally, the protection mandate can be a useful addition to your will. Your will is for the time when you are no longer here. The protection mandate, by contrast, applies to the period in which you are still alive but no longer able to manage your assets or perform personal acts. You determine yourself how serious your condition must be before the mandate takes effect, and you define the principles that must be observed.
Once the mandate under the protection mandate takes effect, the mandatary manages your assets for you. In this way, you build in a guarantee that more than enough will remain available for you to live a dignified life.
Wanted Law is happy to provide you with concrete advice and support tailored to your situation.
The protection mandate is a suitable alternative to a judicial protection measure through administration and can be a useful addition to your will.
However, drawing up the mandate agreement is not something to take lightly. In the protection mandate, you already make very important decisions now for the time when you may no longer be able to make them yourself. We are happy to advise you concretely and assist you appropriately.