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Enforceability of a "Mandat de Protection Future"
06/08/2018

In a judgment dated June 6th 2018, the District Court of Luxembourg (le Tribunal d’Arrondissement de et à Luxembourg) made a mandat de protection future, under French law, enforceable, for the first time in the Grand Duchy of Luxembourg.

The mandat de protection future is a protective measure which consists of appointing in advance one or more persons (“mandatary”) to represent any emancipated adult or minor (“principal”) who is not the subject of a judicial guardianship or a family authorisation.

As this concept does not exist under Luxembourg law and the Grand Duchy of Luxembourg has not ratified the Hague Protection of Adults Convention of 13 January 2000, the plaintiff, as principal (mandant), had no choice but to bring the matter before the courts in order to have the mandate recognised and declared enforceable in Luxembourg.

The State Prosecutor, defendant in the proceedings, claimed that the plaintiff lacked an interest to act as, according to him, the mandate had not yet taken force in France. For the Public Prosecutor's Office "the hypothetical and future need to have an exequatur judgment does not constitute an interest to act".

The fact that the plaintiff is a party to the notarial deed where exequatur is requested; that the mission entrusted to the mandatary was to be exercised with respect to Luxembourg companies; and the main objective of the mandate, (i.e. the anticipated organisation of the protection of the principal’s property interests), were raised by the plaintiff to contest this plea.

The District Court then ruled that "the interest to act by the plaintiff or the defendant is not a particular condition of admissibility when the action is brought by the very person who claims to hold the right against the person he has summoned".

The existence of the right is thus not a condition of admissibility but a condition to the merits of the claim. Therefore, the District Court decided that the plaintiff had an interest to act.

As to the exequatur of the mandat de protection future, the District Court recalled that "the judge hearing an application for exequatur does not consider the merits of the claim which was submitted to the foreign judge".

Having recalled the conditions for the admissibility of exequatur, in particular the jurisdiction of the foreign court which rendered the decision, the compliance of the decision with international public policy and the enforceability of the foreign decision, the Court decided to apply these conditions by analogy to notarial deeds.

The Court recalled that an executory title was to be understood as any act, which is covered by the executory formula, including notarial deeds, and held that the notarial deed in question was in no way contrary to Luxembourg public policy.

The Court thus concluded that the mandat de protection future fulfilled all the conditions required to be declared enforceable in the Grand Duchy of Luxembourg.

This decision is still potentially subject to appeal by the Public Prosecutor.

Related : Bonn Steichen & Partners

[+ http://www.bsp.lu]


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