Incapacity mandate – Protection mandate and power of attorney. Incapacity is the absence of the physical or mental faculties that are necessary to exercise civil and legal rights. The persons who have been declared incapable are no longer able to care for their personal health (incapacity to consent to medical care) and have no longer the legal capacity to administer their property, they can no longer purchase or sell property, rent, manage assets and investments, sign legal documents (a last will and testament, for example), make gifts, etc.
In case of incapacity, what to do? In Quebec, once a person becomes incapable (physically or mentally), legal proceedings must be undertaken to legally declare the person incapable and appoint a person to look after his or her personal health, and to manage his or her assets. If the person concerned does not have a protection mandate (also known as “incapacity mandate”), his or her family members or interested parties must contact the Quebec Superior Court to open a regime of protective supervision. The court may establish a curatorship, a tutorship, or may appoint an advisor.
If curatorship or tutorship is established, a curator or tutor will be named and shall administer the incapacitated person’s assets. The Court shall name a tutorship council which shall supervise the curator or tutor. The process of establishing a regime of protective is scrutinized by the Public Curator, which may step in at any time and formulate objections.
You can avoid a nasty situation by signing a protection mandate.
Protection Mandate The protection mandate is a document whereby you appoint one or several persons (mandataries) to take care of your physical situation and to manage your assets should you become incapable. This document can be signed only if you are capable (legally speaking) to do so. If you become incapable, the mandataries will need to open a file to the Quebec Superior Court to homologate the protection mandate.
Homologating a protection mandate is preferable to establishing a regime of protective supervision for at least two reasons.
A). You choose in advance who will take care of your physical situation and to manage your assets should be you become incapable. If a regime of protective supervision is established, you don’t have this guarantee.
B). There is no requirement to appoint a tutorship council to supervise your mandataries actions. You are free to impose in your protection mandate certain administration requirements on your mandataries in relation to the management of your assets.
But, remember, it’s very important: between the moment you are factually incapable and the moment you are legally declared incapable and the protection mandate is homologated, your mandataries cannot manage your assets. They will be able to act once the protection mandate is homologated by the Court.
How to manage the situation? A solution is to sign a power of attorney (can be included in the same document, 1st part is the power of attorney, the 2nd is your protective mandate). The power of attorney, which will take as soon as you sign it, gives to your attorney (agent) the authority to make financial decisions on your behalf. If you become incapacitated, the persons named in the power of attorney can manage your assets on the condition that an application has been filed to homologate your protection mandate.
A power of attorney alone is not enough for incapacity planning. Your attorney cannot on the sole basis of a power of attorney manage your assets while you are incapacitated; you must have a protection mandate that is in the process of being homologated by the court. After the homologation, the power of attorney falls, are not good anymore, and the protective mandate will apply, with all the details you put in it. It’s a good idea to seek legal advice to ensure that what you decide is appropriate for your circumstances.
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