Protection mandate: 8 key questions
An incapacitating accident or illness can happen to anyone at any time. A protection mandate allows you to officially appoint someone you trust to look after you, your children and your property.
1. What is a protection mandate?
The protection mandate is a legal document in which you (the mandator), provided you are a person of full age and in full possession of your faculties, give someone you trust (the mandatary) the power to make decisions on your behalf concerning your assets (your finances) and your personal care (welfare and necessary health care) in the event you are no longer capable of making these decisions yourself.
The mandate takes effect only when you have been declared incapable and the mandate has been homologated (certified as valid) in a court of law. A medical and psychological assessment is used as proof of your incapacity.
2. Who needs a mandate?
Some people mistakenly believe that only the elderly need a protection mandate. In fact, young people should have one too because an accident or illness can happen to anyone at any time and deprive you of your ability to make decisions. If you have minor children, a protection mandate allows you to designate a tutor for them. This designation will take effect only if the other parent is deceased or otherwise unable to act as tutor. Designating a tutor for minor children can avoid having one appointed by the court.
3. Why is a mandate necessary?
The protection mandate gives you an opportunity to choose your mandatary and clearly express your wishes. Aside from the name of your mandatary (mandataries) and their substitute, the mandate can include instructions concerning:
- Scope of the mandataries' powers;
- Family protection (e.g., appointment of a tutor if you are the parent of a minor child);
- Access to your medical records;
- Consent to donate your organs;
- End-of-life care;
- Accommodation (whether you want to stay in your home or be placed in a nursing home);
- Management of your business if you have one;
- Maintenance and management of property if you are a property owner;
- Procedures for reporting on the administration of your property to prevent abuses.
4. Where do you start?
The first step is to ask the person you would like to appoint as your mandatary if they are willing to accept this responsibility. The next step is to sign the mandate before two witnesses who do not stand to benefit from mandate. There is a form you can download directly from the Curateur public du Québec website (under the Forms tab).
5. Why have a notarized mandate?
You might prefer to have a notary draft your mandate. A notary can offer you advice based on your personal situation. A notarized mandate has three advantages:
- It gives you access to legal advice about the mandate's content and what you have to do to make sure it's valid;
- It's easy to execute because you won't have to look for witnesses to homologate the mandate;
- It gives you peace of mind because a notarized mandate is harder to challenge in court and the original remains in the hands of the notary.
Your notarized mandate will be registered in the Register of Mandates of the Chambre des notaires du Québec, thus eliminating the risk that it might get lost or forgotten. A mandate that is not notarized can also be registered through a notary. This procedure makes it easier to enforce the mandate in a timely manner.
The notary will discuss all of the aspects that need to be covered in light of your situation and draft a mandate tailored to your particular needs. Once the document is ready, it's recommended that you give one copy to your mandatary and tell this person where the original is located. It's also a good idea to tell your loved ones that you have a mandate.
6. You don't have a protection mandate?
Like many people, you may believe that in the event you can no longer make decisions in your best interest, your spouse or children can just step in and do it for you. However, if you don't have a protection mandate, the court will appoint a tutor or a curator, depending on your level of incapacity, to act on your behalf.
The court will consider the recommendation of relatives and friends, who will be called to a meeting so that everyone can give their opinion as to who is best qualified to look after you and administer your property. Until this process is complete or your mandate has been homologated, the rules concerning the management of a person's affairs set out in Civil Code of Québec allow one individual, under certain conditions, to voluntarily manage the affairs of an incapacitated person.
7. What is the role of the Public Curator ?
The role of the Public Curator is to protect people who are incapacitated. In short, the Public curator makes people aware of their need for protection in the event of incapacity. It supports families and loved ones who represent an incapacitated person or who take part in a tutorship council.
The Public Curator also ensures that decisions respect the basic interests, rights and independence of the person being represented. Lastly, the Public Curator can act as either a curator or a tutor. For more information, visit www.curateur.gouv.qc.ca.
8. What about the power of attorney?
The power of attorney is in effect while you are in full possession of your mental faculties. It gives the person you have designated in the power of attorney the authority to administer your property during a specified period of time, such as a trip or a hospitalization for example, or for an unspecified period of time. Unlike the mandate in case of incapacity, the power of attorney can be revoked.