I hold power of attorney over my mother-in-law's accounts: what am I allowed to do?

Answer by the AvoConsulte editorial team

A power of attorney lets you manage your mother-in-law's accounts in her interest, not give her money to others. Transfers to help a family member are gifts, and gifts need her express authorisation. Now that she has lost her mental capacity, the proper route is to ask the court to place her under interdiction (legal incapacity).

What the Code of Obligations and Contracts says

• However broad the power, the agent cannot, without the principal's express authorisation, make a gift or write off a debt (article 1120).
• The agent must carry out the mandate exactly without going beyond it (article 1121), act with due care (article 1131) and account for their management, including income and expenses (article 1136).
• The mandate ends on the principal's death or on a change of status that removes their capacity, such as interdiction (article 1157).

If your power of attorney does not expressly cover gifts, the transfers to your son could be claimed back from you, for example by the heirs, because they left your mother-in-law's assets for nothing in return. Paying for her care home or treatment, on the other hand, is in her interest.

Loss of capacity and interdiction

Declining mental health alone is not enough: interdiction is pronounced by the judge on expert advice (article 161 of the Personal Status Code) and can only be lifted by another judgment (article 167). A legal representative then manages her assets under the court's supervision. What happens to the power of attorney between the loss of capacity and the judgment is not clearly settled by the text, and the bank may freeze the account if it learns of her condition.

What we recommend

• stop transfers to third parties until you have spoken to a lawyer;
• keep statements and receipts, and record each transaction and its purpose;
• have a lawyer file for interdiction and the appointment of a representative: that framework protects her, and you too.

This answer was written by the AvoConsulte editorial team and gives general information only: it is not legal advice. For your own situation, consult a lawyer.

Sources

1. Code des obligations et des contrats (texte réorganisé approuvé par la loi n° 2005-87 du 15 août 2005) OMPI – WIPO Lex
2. Code du statut personnel – La démence et la faiblesse d'esprit (art. 160 à 163) Jurisite Tunisie
3. Code du statut personnel – L'interdiction, dispositions communes (art. 167 à 170) Jurisite Tunisie