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Retirement in Belgium: A guide to protecting yourself and your patrimony

11:02 20/01/2021

As you get older, you might find it useful for someone to assist you with payments or other administrative tasks, or to take them off your hands entirely. This way you avoid financial penalties or administrative hassles when forgetting to pay, and you know that your interests are well looked after and that you are not being taken advantage of.

Alternatives for managing your assets

Different formulas allow you to prepare for the day when illness, mental health issues or a handicap can impede you fully looking after your own interests:

  • Standing bank orders make life easier. Contact your bank manager to put them in place.
  • As long as you are mentally and legally competent you can draw up a power of attorney or mandate for someone to act on your behalf in a legal or business matter, i.e. managing your bank account or following up on your paperwork.
  • If you are married and your partner is no longer mentally competent, you can apply to the family court to have the powers of management conferred on you; this allows you for example to make decisions regarding the family home for the both of you.

Extrajudicial protection

A power of attorney is no longer in effect when you are incapable of making your own decisions through dementia, illness, accident,… The care mandate (‘zorgvolmacht’ or ‘mandat de protection extrajudiciaire’) however, drawn up while you are mentally competent, allows you to make arrangements for protecting your assets and some aspects of your care for when you are no longer able to look after your own interests. With the care mandate you appoint someone to do that for you.

The care mandate lists in detail the life choices and provisions for the management of your patrimony the mandate holder has to respect. You can also use the care mandate to determine if someone may donate in your name. If you want to use the care mandate for inheritance planning purposes, it has to be drawn up by a notary.

The care mandate may also contain provisions about your place of residence, your care home, your treating physician, home care, etc. The mandate holder does not have to consult a judge (vrederechter/juge de paix) before acting in your name. All this is only valid if the care mandate was registered.

A care mandate still allows the person who granted the mandate to act. In some cases judicial protection may be more advised. Further information about the care mandate, see www.notaire.be or consult a notary.

Judicial protection

If you can no longer make decisions about your finances or your personal situation (i.e. place of residence, medical care) and there is no care mandate, a judge (vrederechter/juge de paix) may appoint an administrator.

The judge will prefer to entrust this administration to a relative or a person of trust. If that is neither possible nor appropriate, he will choose a professional administrator, i.e. a lawyer. The administrator will assist you with certain acts or he will act for you.

A request for administration for a person who is mentally incapacitated is to be sent to the justice of the peace. Attached should be all possible proof that can help the judge decide if administration is the most appropriate solution. This includes a medical certificate with which a physician indicates the impact of the mental and physical health of the protected person on his or her daily life.

Declaration of preference

If you want to make sure that the administrator is someone you know, you can draw up a declaration of preference (‘akte van voorkeur’ or ‘déclaration de préférence’). This allows you to put forward the name of the person you would like as your administrator, in case you become mentally incapacitated.

You can declare your preference with the justice of the peace or with a notary. This declaration is then registered in the Central Register of Declarations of Preference. The judge is expected to respect this declaration. You can also incorporate the declaration of preference in the care mandate.

Written by The Bulletin with the King Baudouin Foundation and the Federation of Notaries