Of Legal Mandates and Fiduciary Trust: The Role and Appointment of an Attorney in Belgium
The concept of an “attorney” in common law jurisdictions often conjures the image of a courtroom advocate, a barrister or solicitor representing a client before a judge. In the civil law context of Belgium, however, the term holds a distinct and profoundly important meaning, one that is less about litigation and more about a fundamental grant of trust in personal and financial affairs. Here, to be appointed as an “attorney”—or, more precisely, a mandataris or mandataire—is to be entrusted with a mandate, a legal authorisation to act on behalf of another person, the mandant, within defined boundaries. This role is most critical in the spheres of future incapacity planning and everyday legal representation, governed by the Law of 17 March 2013 on various provisions relating to mandates and the creation of a special power of attorney, alongside the broader principles of the Civil Code. Understanding who can assume this significant responsibility, and under what conditions, is not merely a legal formality but a crucial exercise in foresight, as it involves delegating the authority to manage one’s health, property, and personal welfare at a time of utmost vulnerability. The Belgian system, with its layered approach of general mandates, special mandates for medical care, and the increasingly pivotal role of the notary, creates a structured yet flexible framework designed to protect the autonomy of the individual while ensuring faithful and competent representation by the chosen attorney.
The fundamental principle governing who can be an attorney in Belgium is one of legal capacity and practical trust. The law does not impose restrictive professional requirements; one does not need to be a lawyer, notary, or any other legal professional to be appointed. Instead, the primary qualifications are of a personal and legal nature. The prospective attorney must, first and foremost, have the legal capacity to exercise civil rights—they must be an adult (18 years or older) or an emancipated minor, and they must not be under a regime of protective supervision for themselves, such as guardianship or administration, which would impair their own ability to manage affairs. Beyond this baseline, the critical attribute is the trust of the mandator. The role is a fiduciary one, demanding honesty, diligence, and an unwavering commitment to act solely in the best interests of the person granting the power. Consequently, it is common and advisable to appoint a close family member—a spouse, child, or sibling—or a deeply trusted friend. One can also appoint multiple attorneys, either to act jointly (requiring consensus for every decision) or separately, providing a system of checks and balances or simply ensuring availability. For those without a suitable individual in their personal circle, or for complex estates, a professional such as a notary or an attorney-at-law (advocaat) can be appointed, though this typically involves fees for their professional services. The law thus provides wide latitude, placing the emphasis on the judgment and personal choice of the individual creating the mandate.
The most solemn and comprehensive form of this delegation is the mandate for future incapacity, often prepared before a notary. This anticipatory document allows a person, while still fully capable, to designate one or more attorneys to manage their property and/or personal welfare should they later become unable to do so themselves due to illness, accident, or cognitive decline. The scope of this mandate can be extraordinarily broad or carefully circumscribed. It may grant the attorney the power to manage all bank accounts, buy or sell real estate, and handle tax affairs, or it may be limited to specific assets or tasks. Crucially, separate provisions exist for personal well-being, allowing the attorney to make decisions about medical care, place of residence, and social interactions, often guided by the principles previously expressed by the mandator. The activation of this mandate is not automatic; it requires a formal medical declaration, usually from two physicians and sometimes a third expert, certifying the mandator’s incapacity. This procedural safeguard is vital, protecting the individual’s autonomy for as long as possible. Once activated, the attorney’s powers are substantial, but they are not absolute. They are bound by the terms of the mandate and a general legal duty to act prudently and in the mandator’s interest, with certain consequential acts, like making substantial gifts or selling important family property, often requiring prior authorisation from the court of first instance (Vrederechter or Juge de paix).
Beyond this profound future-focused mandate, Belgium recognises the utility of specific, immediate powers of attorney for defined transactions. These special mandates are everyday legal tools used when a person cannot be physically present to sign a document or complete an act. For instance, an individual living abroad might grant a special power of attorney to a family member in Belgium to complete the sale of an apartment on their behalf. Similarly, a special mandate for medical care can be granted to a trusted person to receive medical information and make certain healthcare decisions, even if the patient is temporarily incapacitated but has not been declared legally incapable. These documents must be precisely drafted, specifying the exact powers conferred, and are often executed before a notary, especially when concerning real estate, to ensure their authenticity and enforceability. In all cases, whether for future incapacity or a specific present transaction, the role of the notary is often pivotal. Notaries in Belgium are public officers who not only authenticate documents but also provide essential legal counsel, ensuring the mandate accurately reflects the mandator’s wishes, complies with all legal formalities, and provides the necessary protections for all parties involved.
Ultimately, the question of who can be an attorney in Belgium is answered not by a list of credentials, but by a measure of confidence and competence. The system empowers individuals to choose their own representatives, tailoring the grant of authority to their unique family dynamics, asset structures, and personal values. It is a powerful legal instrument of self-determination, allowing Belgians to dictate the terms of their own care and the management of their life’s work, even when they can no longer voice their preferences. The profound responsibility placed upon the chosen attorney—to act with loyalty, transparency, and scrupulous care—cannot be overstated. For families, engaging in this planning is an act of mutual care and clarity, preventing future conflict and uncertainty. It transforms potential crisis into managed procedure, ensuring that during life’s most challenging transitions, decisions rest in the hands of a person who was chosen not by the court, but by the individual themselves, guided by a document born of foresight and cemented by trust.