Protection Mandate. The homologation of a Mandate. Preparing a mandate in the event of incapacity (a protective mandate). The mandate given in anticipation of incapacity
If a loved one is not too sick or maybe not too old to still be able to continue to manage their property or simply to take care of themselves, it is time to think of a notary protection mandate (in anticipation of incapacity).
What is a mandate of protection for incapacity?
The mandate of protection in case of incapacity is a document in which the person who is in difficulty identifies in advance one or more persons who can take care of their property or their welfare from the moment they are no longer able to handle it themselves. This designated person will be called a mandatary / representative.
The mandate of protection for incapacity is different from a power of attorney and it’s often referred to as a power of attorney because the power of attorney designates a person to take care of another one’s property while the real owner of that property is also capable of managing it.
The mandate of protection for incapacity is applicable only from the time a Court declares the person as being incapacitated and this procedure is called homologation. For the approval of the mandate of protection in case of incapacity, the mandatary / representative can call on the services of a notary who is accredited for the execution of non-contentious procedures.
The procedure includes the medical evaluation of the person by professionals and the establishment of their state of incapacity, the search for the mandate at the Chamber of Notaries and the Barreau of Quebec and the analysis of its validity.
Thereafter, your Montreal notary or a judge or clerk will have to question the person to verify their incapacity. The judge or the notary who handles the file will ensure the homologation of the mandate and the homologation will give effect to the mandate.
What conditions must fulfill a mandate of protection given in anticipation of incapacity?
Preferably, a mandate of protection in anticipation of incapacity is notarized. If you choose a notarized mandate of protection, you will be sure that a notary hold the original document and, on the other hand, you will be more reassured knowing that this document is more difficult to contest or to question in the courts of law.
Your notary in Montreal certifies your consent and will record your mandate of protection to the Register of mandates of the Chamber of notaries.
The mandate of protection provides for the responsibilities of the mandatary / representative. He or she may act as an agent for the person and in this case they’re supposed to look after the physical and moral well-being of the incapacitated person, and in this case the mandatary can make decisions regarding health care, social or accommodation needs of the incapacitated person.
If he acts as a mandatary for the property of the incapacitated person, he is expected to manage that person’s property, debts and income, to pay bills and even to take legal action on their behalf in respect of their property.
Regardless of the responsibilities you choose to assign to your mandatary / attorney, you should make sure that you give your notary all the information, so that he or she can write a complete and a precise document.
It is always your notary who can best advise you on ways to limit the powers of the attorney (if you choose to add this power to your mandate of protection) or on the conditions to be able to change your mandate of protection later.Contact us now!