When a tutorship is established, the tutor must look after the incapacitated person and manage their finances and property. The tutor must also make sure that the person’s autonomy is safeguarded and that their wishes and preferences are taken into account.
The duties of a tutor are well-defined and are carried out in a strict legal framework.
Are you serving as curator for a person in a situation of incapacity?
If so, as of November 1st your title has officially changed to “tutor”. However, your role remains essentially the same.
To learn more, read the following article.
One tutor or two?
The court can appoint one or two people to act on behalf of the person under tutorship.
The tutor is usually someone close to the person under tutorship (for example, their spouse, a family member or a friend). If no one close to the person under tutorship can or wants to act as tutor, the court can appoint the Public Curator to do so.
Here are the most common situations:
- The court appoints a tutor to look after the person’s well-being and to manage their finances and property.
- The court appoints two people: one tutor to look after the person’s well-being (often called the “tutor to the person”) and another tutor to manage their finances and property (often called the “tutor to property”).
- The court appoints a tutor to look after the person’s well-being only, or to look after their finances and property only.
The court usually appoints a single tutor to look after a person’s well-being. However, there’s one exception: the parents of an adult child can both be appointed to act as tutor for their child.
The tutorship council
The tutorship council provides support to tutors with regard to their responsibilities and helps them reach an agreement in the event of any conflict. The council is usually made up of three people chosen at a meeting of relatives, people connected to the incapacitated person by marriage or a civil union, or friends. It can also be made up of one person if the court authorizes it.
Taking into account the wishes and preferences of the incapacitated person
As a tutor, you must consider the wishes and preferences of the person under tutorship.
The person must also take part in the decisions, according to their abilities. Decisions must always be made in the person’s best interests.
The court decides who does what
The tutorship must be adapted to the incapacitated person’s needs and respect their autonomy.
When a tutorship is established or reviewed, the court can determine which acts can be performed by the person under tutorship (alone or with the tutor’s help) and which acts the tutor can perform alone. This is called “modulation of the tutorship.”
When making these decisions, the court considers the medical and psychosocial assessments carried out and the opinion of the incapacitated person as much as possible.
Below are some examples of what a court might determine the incapacitated person is still able to do, taking into account of their needs and abilities:
- Buy everyday items, such as groceries, clothing and pharmacy products.
- Sign an employment contract and manage their earnings.
- Decide where to live.
- Sign a lease.
- Vote in school, municipal, provincial or federal elections.
Even if a person is under tutorship, they can still accept or refuse healthcare. To learn more, see our article “Adults Who Can’t Make Medical Decisions on Their Own.”
Rules to follow as a tutor
The law provides rules for you to follow. There are also safeguards in place to prevent abuse.
Preparing an inventory and an account
When a tutorship is established, you have 60 days to prepare an inventory of the money and property you’re managing. The inventory provides a financial picture of the person under tutorship.
You must also present a yearly account to the tutorship council, the person under tutorship and the Public Curator.
If the value of the property to be managed is over $40,000, you must take out insurance or provide another type of guarantee (a “security”). The purpose of the guarantee is to protect the person under tutorship if you don’t fulfill your responsibilities. Examples include a hypothec (mortgage) on your property or the freezing of some funds.
The tutorship council decides on the type of guarantee and the timeframe. If the tutorship council does not make this decision in the first six months of the tutorship, the Public Curator can do it.
Requesting authorization for major decisions
You can’t make major decisions on your own, like borrowing money for the person under tutorship or selling a major asset such as a house or a business.
If the value of the asset is more than $40,000, you will need the court’s authorization. If the value is $40,000 or less, you will need the authorization of the tutorship council.
Fulfilling your duties
The tutorship council ensures that tutors carry out their duties properly.
If a tutor neglects their duties, the situation can be reported to the Public Curator. Another option is to ask the court to replace the tutor.
Are you entitled to a salary?
A tutor isn’t paid for their work, unless the court decides otherwise in a judgment if the situation allows. However, when the Public Curator acts as tutor, their fees are paid from the assets of the person under tutorship. The fees depend on the type of work and the time spent on each task.