A mandate is a contract that lets you name 1 or several people to act in your place. The person who acts for you is called a “mandatary”. If she accepts the mandate, the mandatary acts in your name in situations you have described in your mandate. For example, Rosalie could make a mandate and name her brother, Rock, as her mandatary to collect rent, pay bills and sign a contract of sale for her cottage.

These are the things to include in a mandate:

• date and length of the mandate
  
• name of the mandator (the person who gives the mandate)
  
• name of the mandatary (the person who accepts the mandate)
  
• task or tasks the mandatary will do and instructions on how she will do it
  
• mandator’s signature

For example, Rosalie will surely specify that her mandatary can only act for her while she is away and only for the acts listed in the mandate.

They are the same thing! The term “power of attorney” is another word for a mandate. A power of attorney can be used to refer to the document containing the mandate or the power of the mandatary to act in the name of another person.

A mandate can usually be verbal or written. However, it must be written in certain cases. To withdraw money from a bank account or to sell a building, for example, the mandate must be clear and written, to avoid abuse. Imagine someone showing up at your bank to withdraw money from your account, supposedly in your name, without a written document! To protect you, professionals and institutions require precise, written mandates regarding what your mandatary can do.

A mandate can also be made with the help of a notary or lawyer.

You can give someone a mandate to represent you when you cannot do something yourself. This might be because of distance, a trip, scheduling problems, a physical handicap, old age, etc. To give someone a mandate to represent you, you must have the legal capacity to do this. This means you must be an adult and have the mental ability to consent to and understand all of the implications the mandate.

A mandate can also be given in anticipation of incapacity. This way you can name, in advance, the person or people who will make decisions about your well-being and your property if you are no longer able to because of, for example, an illness or accident. The rules for these kinds of mandates are different.

Any adult can act as a mandatary. However, be sure that you trust the person you name!

A mandatary can also be a professional, and this can be a good idea when it comes to complicated matters. For example, a person might name an accountant for the preparation of tax fillings, a lawyer for representation in court, a real estate agent for the sale of a house, etc.

No, but it can encourage someone to accept a mandate! Also, when a mandate is given to a professional, she might insist on being paid for her services.

First and foremost, a mandate is a contract between the person who gives the mandate (the mandator) and the person who carries it out (the mandatary). The mandatary therefore has responsibilities towards the person who gave the mandate. Here are the responsibilities:

• personally carrying out the mandate herself, unless the mandate says that it can be delegated (given to someone else to carry out)
  
• getting help from another person to carry out the mandate when this is necessary, unless this is forbidden by the mandate
  
• acting with prudence and diligence, which means acting like a trustworthy person would in the same situation
  
• being honest and loyal towards the mandator, which means acting in the mandator’s best interests and avoiding conflicts of interest
  
• informing the mandatory of progress made in carrying out the mandate
  
• informing the mandator about how the mandate was carried out

The mandator (person who gives the mandate) also has responsibilities towards the person she named as mandatary. Here are those responsibilities:

• collaborating with the mandatary so that she can carry out the mandate properly
  
• giving money in advance or reimbursing money needed to carry out the mandate, with interest on that money
  
• paying the mandatary, if the mandate provides for this
  
• compensating the mandatary for any loss she suffers while carrying out the mandate, as long as the loss was not caused by the mandatary’s fault

Also, the mandator remains responsible for contracts made and acts done by the mandatary as long as the mandatary acts within the limits of the mandate. For example, Rosalie gives her brother, Rock, a mandate to repair the banister of her rental property. Rock fixes it badly and a tenant hurts himself. Rosalie will be responsible along with Rock for dangers caused by the work, because Rock was carrying out his mandate to fix the banister.

If someone is pretending to be your mandatary, and there has never been a mandate between you, you are not responsible for her acts.

However, if she used to be your mandatary, you can be held responsible for her acts in the following situations:

• You let people believe that the person is still your mandatary when this is not the case.
  
• You did not put an end to the mandate and notify the people with whom your mandatary interacted to carry out the mandate.

Also, if your mandatary does things while carrying out the mandate and these things could not have been postponed or were necessary to avoid a loss, you will be responsible for anything the mandatary does, even if you had put an end to the mandate.

For example, Marco decides to put an end to the mandate he gave to his lawyer, Catalina. Despite this, she files a defence in court that she had already prepared so that Marco would not miss a deadline. Marco only had 1 day left to file his defence. Even though the mandate had already ended, Catalina has a right to be paid her professional fees for filing the defence.

If your mandatary does not carry out the mandate in the way you had agreed, you can always tell her, so that she can change her behaviour in the future.

Otherwise, you can end it at any time. This is also called “revoking” a mandate. To know more about this, see the question: “How do I revoke a mandate?”

If the mandatary acts beyond the powers given to her in the mandate, she could be responsible for her actions towards the people with whom she made commitments, unless the person who gave the mandate approved the acts.

For example, while collecting rents, Rock notices that the plaster on the ceiling of one of the apartments is flaking and decides to hire a mason to fix it. Maintaining the apartments was not one of the jobs Rosalie gave Rock in the mandate. Upon her return, she will have the choice of either paying the mason or letting Rock deal with the bill.

Yes, in some cases.

Mandate between Spouses

The simple fact of being married or in a civil union creates a mandate between spouses. One of them can therefore do by herself what is needed to deal with the family’s ordinary needs: buy food, clothes and furniture for the household, hire a plumber to fix a leaking pipe in the bathroom, etc. It is not necessary to have a written mandate between spouses.

Both spouses are responsible for acts performed by the other. For example, if Rose hires a contractor to fix the roof of the family house, she and her husband will both be responsible for paying the contractor for his work.

Take note! This mandate does exist between de facto spouses

Mandate between Partners

When two or more people get together and form a partnership, one of the partners can perform an act in the name of the partnership and for the partnership. For example, a partner can buy a photocopier in the name of the partnership for use by its employees. The partners therefore become responsible for acts done by one of them.

Mandate of a Company’s Director

Directors, officers and other representatives of a company act as mandataries of the company when they do things to carry out their duties. In these situations, the company is responsible for acts done by its mandataries.

A mandate ends when:

• an event happens that makes it impossible to carry out the mandate
  
• the mandator revokes (puts an end to) the mandate
  
• the mandatary renounces the mandate (resigns)
  
• the mandator or the mandatary dies
  
• protective supervision is put into place for the mandator or mandatary
  
• the mandator or mandatary goes bankrupt
  
• the mandate has a set end date
  
• the mandator and the mandatary are finished carrying out all of their responsibilities

You can put an end to a mandate at any time.

To protect yourself and to avoid having your mandatary continuing to act in your name, you can ask your mandatary to give you back the mandate and write on it that it has ended. Your mandatary can require you to give him a copy of the mandate with this statement on it. It will be proof for both of you that you withdrew the mandate. If the mandate was made before a notary or lawyer, notify her that you want to revoke the mandate. She will then take care of writing an indication on it that you have put an end to it.

You can also notify people who dealt with your mandatary that the mandate has been revoked. For example, if Rosalie lets her brother, Rock, withdraw money from her bank account to pay her bills, Rosalie can notify the bank that she has put an end to her brother’s mandate.

Be careful! If you do not have a serious reason to end a mandate and ending it could cause harm to your mandatary, you could be held responsible for that harm.

For example, Rosalie has mandated Yvan, a real estate agent in her area, to sell her house. Yvan worked hard to find buyers. Rosalie signed a promise from a buyer to buy her house. The only thing left to do is finalize the sale before a notary. If Rosalie decides to end her agent’s mandate before the end of the sale, he could sue her for the money he would have received as commission. After all, he did carry out the mandate Rosalie gave him.