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What is a care mandate?
A care mandate allows you to give one or more persons, known as mandataries, the authority to make certain decisions on your behalf. You decide which powers you grant and when the care mandate takes effect.
A care mandate may, for example, cover:
· managing bank accounts and investments;
· paying bills;
· managing or selling property;
· making certain gifts;
· managing or selling shares;
· dealing with certain personal and practical matters;
· making arrangements for your future care or accommodation.
A care mandate doesn’t necessarily start when you lose capacity. You can also stipulate that the mandatary may assist you at an earlier stage.
If you want the care mandate to remain in force if you subsequently lose capacity, it must be registered in the Central Register of Mandates. Without such registration, an ordinary mandate will in principle end when you lose capacity.
The major advantage? You decide in advance who may act on your behalf and how. Without a care mandate, it may be necessary for the justice of the peace to appoint an administrator if you are no longer able to make certain decisions yourself.
Why are the rules for care mandates changing?
The Act of 8 November 2023 reforms the legal framework governing administrators of protected persons. Among other things, the legislator aims to improve the quality and professionalisation of administration.
The reform doesn’t just affect administrators appointed by the court but also brings changes for those appointed as mandataries under a care mandate.
A large part of the reform was originally due to enter into force on 1 September 2025. However, the Act of 18 July 2025 postponed this date. Under the current legislation, the new system will enter into force no later than 1 September 2027, unless the King sets an earlier date.
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Who can act as a mandatary from 1 September 2027?
Today, there is relatively broad freedom when choosing a mandatary. Once the new rules are introduced, it will become more important which category the person you choose belongs to.
The Act distinguishes between family administrators and professional administrators.
1. The family administrator
The term ‘family’ should be interpreted broadly and doesn’t necessarily refer to a family member in the traditional sense.
This category may include, among others:
· your spouse;
· your legal cohabiting partner;
· the person with whom you form a de facto family;
· your parents or children;
· other close relatives;
· someone with whom you have a close personal relationship;
· someone involved in your day-to-day care or support.
A good friend or another person you trust may therefore also be considered a family administrator under certain circumstances.
The ‘close relationship’ is particularly important here. The Act doesn’t set out in detail when a personal relationship is considered sufficiently close. If you appoint someone who is not a partner or family member, it may therefore be advisable to clearly describe the nature of your relationship in the care mandate and why you have chosen that particular person as your mandatary.
2. The professional administrator
Stricter conditions apply if the appointed mandatary has no family or sufficiently close personal relationship with you and acts in a professional capacity.
One of the changes involves the creation of a National Register of Professional Administrators. Professional administrators will have to meet specific quality requirements. Among other things, the Act provides for training, professional competence, independence and impartiality, as well as a specific code of professional conduct.
The timing is important here. Although, under the current legislation, the reform will enter into force no later than 1 September 2027, every professional administrator must be included in the national register by 1 July 2028 at the latest, unless the King sets an earlier date. The specific training requirement will enter into force on 1 January 2029 at the latest.
The regulations therefore provide for several transitional dates. When drawing up or reviewing a care mandate, it is therefore important to take into account the rules that will apply when the mandatary effectively has to act.
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Do you already have a care mandate? Check your mandataries
The new rules are relevant not only when you draw up a new care mandate after 1 September 2027. They may also affect an existing care mandate.
If you have appointed your partner, a child or another close family member as your mandatary, there will generally be little change.
More attention is required if, for example, you have appointed an external adviser, accountant, lawyer, asset manager, acquaintance or other third party as your mandatary.
In that case, it must be determined whether that person:
1. can be considered a family administrator because there is a sufficiently close personal relationship; or
2. falls under the regime for professional administrators and meets the applicable requirements.
If your chosen mandatary doesn’t meet the applicable legal requirements when they need to act, this could jeopardise the implementation of your care mandate. In this case it may be necessary to apply to the justice of the peace.
That is precisely what a well-drafted care mandate aims to avoid as far as possible.
Don't forget the mandatary ad hoc
Some care mandates provide for a mandatary ad hoc in addition to the ordinary mandatary.
Such a person steps in when the ordinary mandatary is faced with a conflict of interest. For example, suppose you appoint one of your children as your mandatary and the care mandate provides that a gift may later be made to that same child under certain conditions. As your child is then both mandatary and beneficiary, a conflict of interest may arise.
A separate mandatary ad hoc can act in such a situation.
The new rules must also be taken into account for this person. As a result, it is not enough to check only whether your main mandatary meets the future requirements. This also applies to any substitute, successor or ad hoc mandataries.
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Drawing up a new care mandate? Think about 2027 today
September 2027 may still seem a long way off. However, there is little point in drawing up a new care mandate today if you already know that an appointed mandatary may no longer meet the legal requirements in the future.
Moreover, you never know when a care mandate will actually be needed. It is therefore advisable to look ahead when drawing up a new care mandate.
Think not only about who you choose as your mandatary, but also about:
· which powers you wish to grant;
· when the care mandate should take effect;
· whether several mandataries may act separately or must act jointly;
· who will act in the event of a conflict of interest;
· who will replace a mandatary if they are no longer able to carry out their duties;
· which rules you want to establish regarding your assets, property or business;
· which personal wishes you want to include regarding your future care.
After all, a care mandate is about much more than simply choosing one person you trust. The clearer you set out your wishes and ground rules today, the lower the risk of uncertainty or disputes when you are no longer able to make decisions yourself.
Do you need to amend your care mandate before 1 September 2027?
Not every existing care mandate automatically needs to be amended. It is mainly the identity and status of your mandataries that determine whether action is required.
Do you already have a care mandate? Then now is a good time to take another look at it. Check not only who you appointed at the time, but also whether the arrangements you made still reflect your current family, financial and professional situation.
Have you appointed a mandatary who is not a family member and with whom the personal relationship is not self-evident? Or have you chosen an external professional you trust? Then it is particularly important to review your care mandate in good time.
This will help you avoid discovering only when your care mandate is needed that an appointed person is no longer able to act.
Would you like to know whether your existing care mandate is still future-proof, or would you like to have a new care mandate drawn up? Contact a PIA office near you. Our experts will work with you to determine which arrangements are appropriate for your personal, family and financial situation.
