As long as you are of sound mind, you can manage your assets as you wish. But your mental health can also deteriorate. In the worst case, you will be placed under administration through the Justice of the Peace, which will result in valuable time being lost and you may end up in an administrative labyrinth. However, you can prevent this by drawing up a health care proxy in advance. Pieter Haine, Estate Planning team leader at Nagelmackers, explains more.
WHAT IS A POWER OF CARE?
A healthcare proxy is an agreement whereby you (authority) give one or more persons (authorities) a power of attorney to manage your assets when you are no longer able to do so.
8 TIPS TO MAKE MAXIMUM USE OF YOUR HEALTHCARE POWER OF ATTORNEY
1. Save costs with a joint health care proxy
Partners can each have a separate healthcare proxy drawn up, but since they often appoint each other as agents and then the children, one joint healthcare proxy is cheaper. Your notary can provide you with further information about this.
2. Decide for yourself when and under what conditions your health care proxy will take effect
You decide when the health care proxy takes effect: immediately when you are still competent, but for example only with difficulty walking or at a later date when you are no longer mentally or physically able to perform certain actions.
Most health care powers of attorney provide that the agent does not have to provide any evidence with regard to third parties (such as the bank) and intervening notaries that the requirements for entry into force have been met. The actions of the agent and the presentation of the health care proxy are in themselves sufficient proof of this.
3. Provide a waterfall principle for continuity
If possible, provide multiple agents in the healthcare power of attorney. If the first appointed agent is later no longer able to act for you due to illness, death or termination of the mandate, the next agent will take over.
4. Avoid conflicts of interest
Sometimes conflicts of interest can arise between the principal and the agent. To prevent this, you can appoint an ad hoc agent in advance. That person will then act in place of the original agent. For example, it is not permitted for an agent to make a donation to himself.
5. Go for a notarial deed
A health care proxy can be drawn up both notarially and privately, but almost all health care powers of attorney are notarized. A notarial deed is mandatory when the healthcare power of attorney will be used in the context of a future donation or the sale of real estate.
An important condition for the healthcare power of attorney to become effective is that it is registered in the Central Register of Mandatory Agreements. The notary will take care of this registration.
6. Determine the contents of your health care proxy
The healthcare power of attorney focuses on the management of your assets, such as arranging your banking affairs, making donations, purchasing or selling real estate or changing your marriage contract.
In addition, as far as your person is concerned, you can specify, for example, in which rest or care institution you want to stay, which doctor you want to be treated by, which patient rights your representative may exercise, etc.
7. Take your estate planning into account
You can provide that the agent can still make donations to previously designated persons with the possible inclusion of certain conditions to protect yourself, for example a donation subject to usufruct, inclusion of a financial interest charge, a maintenance obligation, etc. However, an agent cannot draw up a will since which is a strictly personal document.
In this way, the agent can also make movable donations if necessary and have them registered. The flat gift tax on movable property (3% or 7% in the Flemish Region) is much cheaper than the increasing rates of inheritance tax.
8. The healthcare power of attorney in practice
Once the notary has drawn up a draft for your healthcare power of attorney, it is always wise to also submit that text to your financial advisor. He or she looks at the legal document with a pragmatic view and can possibly add practical refinements.
Are you an entrepreneur with your own company? Be sure to compare the contents of your healthcare power of attorney with the articles of association of your company and the succession arrangement outlined therein in the event of death or incapacity.
IT'S NEVER TOO LATE TO THINK ABOUT LATER!
Come by for an introductory meeting with one of our estate planners at Nagelmackers. They will help you with your wealth and succession planning.
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