The Notary's Duty When a Client Appears Cognitively Impaired
An 84-year-old widower, Mr. De Vos, comes to the notary with his nephew to sign a power of attorney authorizing the nephew to sell his apartment and transfer the proceeds to a joint account. Mr. De Vos is accompanied by the nephew, who answers most questions. The notary notices that Mr. De Vos is disoriented about the date and the value of the property, and that the nephew has already prepared the text. The apartment is worth 300,000 EUR and is Mr. De Vos's only significant asset. The nephew says his uncle wants to 'help the family'. The notary must decide whether to proceed.
1. What are the notary's ethical and legal obligations before drafting the power of attorney?
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The notary must verify the client's consent and capacity. A notary cannot authenticate a deed if the party lacks the necessary understanding. The notary should conduct a private interview with Mr. De Vos, without the nephew, to test his comprehension of the transaction, its value, and its consequences. The notary must check whether a guardianship or administration order exists, and whether a trusted third party or physician should be consulted. The notary must also verify the absence of undue influence and conflicts of interest: the nephew benefits from the arrangement. If doubts persist, the notary should decline to act, or postpone and request a medical opinion. The notary's duty of impartiality and the duty to advise require refusing to proceed on the nephew's prepared text without independent verification.
2. If the notary proceeds, what safeguards and formalities should be built into the deed?
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If capacity is established, the notary should draft the power of attorney personally, not adopt the nephew's text. The mandate should be specific, limited in time, and subject to reporting: the nephew must account for the sale proceeds and provide statements. The notary should include a prohibition on self-dealing and on transferring the proceeds to an account the nephew controls without oversight. The notary must read the deed aloud, ensure Mr. De Vos confirms understanding, and record the circumstances. The notary should also consider a mandat de protection judiciaire or administration if capacity is doubtful. The deed must be registered where required, and the notary should keep a detailed file note. The notary remains liable if the mandate is later challenged as procured by undue influence.