At a time of increasing life expectancy and rapid demographic ageing, it is not surprising that many people are worried about how their affairs would be managed if they were to lose the capacity to do so themselves. The Belgian parliament has now provided for the possibility to take precautionary steps to arrange these matters, by way of the custody mandate.
The custody mandate allows any adult (i.e. the principal) to authorize one or more persons to undertake specific and / or general actions in relation to their assets or person. This authority may be provided by way of a private deed and therefore does not require notarization. The custody mandate will have to be registered in the Central Register for Mandates, which is supervised by the Belgian Notary Federation. The person(s) being authorized may additionally register the custody mandate by filing a copy with the responsible Justice of the Peace for the place of residence of the principal.
While the principal is free to determine the conditions and limits of the custody mandate, it is advisable to specify the following points in detail:
- whether the custody mandate is general or specific in nature, and in so far as a specific one is granted, a clear description of its scope;
- the moment in time when the custody mandate takes effect;
- checks and balances concerning the powers granted to the representative under the custody mandate;
- a mechanism designed to regulate potential conflicts of interest between the principal and the representative;
- a mechanism allowing for the replacement of the representative if needed.
As set out above, the custody mandate can authorize actions related to the principal's assets or person. It should, however, be noted that certain personal matters, e.g. marriage, divorce or adoption, remain excluded and cannot be undertaken through the custody mandate.
If you are interested to learn more about the custody mandate, do not hesitate to contact the Brussels office of Dentons Europe LLP in case of further questions. Our professionals are available to provide any tailor-made advice at short notice.
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