The author of this post is Estelle Gallant, professor of private law at the University of Toulouse 1 Capitole.
In a judgment of 27 January 2021 the French Supreme Court for civil and criminal matters (Cour de cassation) applied the Hague Convention of 13 January 2000 on the International Protection of Adults (the ‘Adults Convention’) in a case concerned with a mandate in case of incapacity. More specifically, the issue was the content of the distinction between the conditions of validity of the mandate and its manner of exercise.
The Adults Convention
Currently applicable in 13 States (Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Latvia, Monaco, Portugal, Switzerland and the United Kingdom), the 2000 Hague Convention takes into consideration a particular mechanism enabling an adult to organise in advance his or her personal or property protection for the time when he or she is no longer able to provide it. This legal form of mandate in case of incapacity, which was well known in North America and not very widespread in Europe at the time the Convention was drafted, is now more common in Europe. It exists in French law in the form of the “future protection mandate” and in Swiss law in the form of the “mandate for incapacity”. The mandate in case of incapacity is governed in the Adults Convention by Articles 15 and 16.
Article 15 refers to “powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests”. The adult thus entrusts a person or an institution of his or her choice with powers of representation for the future in the event that he or she is unable to protect his or her interests. Such mandate may take the form of an agreement, but also of a unilateral legal act. It may concern the management of property and affairs, but also the protection of the person, his or her care or the decisions to be taken at the end of life, in order to put an end to over-treatment for example. Generally speaking, the legislation establishing this mandate in case of incapacity makes the starting point of the mandate’s effects depend on a judicial and/or medical finding of incapacity.
Article 15(1) of the Convention designates the law of the adult’s habitual residence at the time the instrument is drawn up as applicable to mandates in case of incapacity. Article 15(2) also offers the adult the possibility of choosing the applicable law among three: a) his or her national law, b) the law of a former habitual residence, c) the law of the place where his or her property is located. Irrespective of how it is designated, the applicable law applies to “the existence, extent, modification and extinction of powers of representation” granted by the adult. However, the manner of exercise the powers conferred by the mandate is governed by the law of the State where it is exercised, according to Article 15(3). It follows that whenever the mandate is to be implemented in a State other than the one whose law is applicable, the manner of exercise the mandate will be governed by a different law than the one governing the mandate.
The Ruling – Distinguishing between Validity and Exercise of Mandates
This was the issue raised by the case before the Cour de cassation. A mandate in case of incapacity had been established in Switzerland, where the adult had his habitual residence, before moving to France. As he wished to implement the mandate in France, one of his sons obtained that the mandate be verified formally and “stamped” by an officer of the court (visé par le greffier du Tribunal) in accordance with French procedure. However, another son of the grantor brought proceedings to challenge the implementation of the mandate. He won before the court of appeal of Pau, which annulled the clerk’s stamping on the grounds that it should not have been granted because the mandate did not include any means of controlling the representative of the adult.
The son who had obtained the stamping appealed to the Cour de cassation, which allowed the appeal. The Court held that by requiring that the clerk’s stamping be granted only if the mandate expressly provided any arrangements with respect to the control of the representative, the court of appeal had actually imposed conditions which were not concerned with the implementation of the mandate, but with its validity.
According to the Cour de Cassation, the implementation in France of a Swiss mandate in case of incapacity could not be subject to a condition of validity of French law that was not imposed by Swiss law. The provisions of the Adults Convention are thus perfectly respected: they imply making a distinction between conditions of validity and manner of exercise of mandates in case of incapacity.