Martine suffers from a mild intellectual handicap. Despite this, she is quite independent. She lives alone and can take care of herself when it comes to personal care, cleaning, errands, etc.
But she sometimes has a hard time managing her money. Because of this, when she turned 18, her parents named her brother Nick as an “adviser to a person of full age” for Martine. She has complete trust in Nick.
These kinds of advisers protect people who are generally able to take care of themselves and their affairs, but need help or advice to do certain things. In this article, Éducaloi describes the role of advisers for adults.
What is an adviser for an adult?
Protective supervision is a legal protection for an adult who needs help and advice to exercise her rights or manage her property.
Of all the kinds of protective supervision, the adviser for adults gives the protected person the most independence. The person generally continues to take care of herself. For example, she continues to make decisions about health care. But she can count on her adviser’s help for certain types of contracts and other things related to managing, such as selling her car or signing a lease.
Note that we are talking about help, and not representation. Under the law, a person helped by an adviser keeps the freedom to manage her own affairs. For example, the adviser does not sign contracts in the name of the person he helps.
Who can be helped by an adviser?
This kind of protective supervision is appropriate for adults who can take care of themselves, but need help and advice to manage their property.
People sometimes need this kind of help or advice because of a slight intellectual handicap, an accident, failing mental abilities due to age, or a temporary incapacity caused by an illness.
For example, Martine just won $25,000 in the lottery. As a result of her intellectual handicap, she cannot understand everything involved in investing this amount of money. Nick, her adviser, will be able to help and advise her.
Who can be an adviser?
A family member, close relative, friend or another person who shows a special interest in the person who needs help. The adviser must be an adult (or fully emancipated) and capable of fully exercising her rights.
The Public Curator cannot act as an adviser to an adult.
What is an adviser’s role?
An adviser’s role is limited to helping the person in very specific situations. The person getting help remains responsible for managing her property, but can get advice from her adviser.
The judgment putting into place this kind of protective supervision describes the types of things the person can do without her adviser’s help, and those for which help is required.
If the court does not give instructions on this subject, the person getting help will have the same degree of independence as a minor.
The adviser to an adult must get a re-evaluation of the protected person’s incapacity every 3 years. The court can, however, set a shorter time limit.
How is the adviser named?
The adviser is named by the court who gives the judgment putting into place protective supervision. A notary can also take the necessary steps and present the request to the court to get this judgment if no one in the circle of friends and family of the person to be protected challenges this request.
Before putting protective supervision into place, the court or notary calls a meeting of relatives or friends to get their opinions on appointing an adviser. This group also has a say about who will be named as the adviser. The person to benefit from protection will also be allowed to express his opinion. Of course, the adviser must have the ability and time needed to fill this role, and it is up to the court or notary to make sure that he does.
Who can ask for this kind of protective supervision?
Generally, anyone who shows a special interest in the person needing protection. This could include people worried about the health, security and proper management of the property of the person.
So, the request could come from a spouse, partner, close relative, friend, neighbour, volunteer who helps the person or the Public Curator. Also, a person who thinks he needs this kind of protective supervision can request it.
Does protected person have to follow the advice of his adviser?
No. An adult helped by an adviser keeps the right to manage his property and can do whatever he wants with it. If the protected person does not follow his adviser’s advice and makes a bad decision, no one can blame the adviser.
The adviser’s role is to help, not legally represent. The adviser cannot force the protected person to follow his advice because he is not in charge of managing his property.
However, the adviser’s signature is required for certain important acts listed in the court judgment that named him. Without the adviser’s signature, the protected person cannot do these things. Therefore, in certain specific situations, the adviser has a very important role to play. (See the question “When must the protected person get his adviser’s help?”)
This kind of protective supervision depends largely on trust. If it becomes obvious that there is no trust between the adviser and the protected person and the protected person refuses all of the adviser’s suggestions, it can be a good idea for the adviser to ask to be replaced. Anyone with a special interest in the protected person can make this kind of request to the court or notary.
When must the protected person get his adviser’s help?
The court decides, in the judgment putting into place protective supervision, when the protected person must get the help of his adviser and when the protected person can act on his own.
If the judgment is silent on this point, the protected person must get adviser’s help in these situations:
- renouncing (giving up) an inheritance
- accepting a gift that comes with a condition or an obligation to do something
- taking out a loan that is large in relation to the person’s financial situation
- selling or mortgaging property
In these situations, the adviser must agree to and confirm the protected person’s decisions by signing any necessary documents along with the protected person.
What happens if the protected person does something alone when his adviser’s help was required?
If the protected person does something alone for which his adviser’s help was required, the decision can be cancelled or any commitments made reduced, but only if he suffered harm.
For example, without consulting Nick, Martine decides to give up a $7,500 inheritance even though she has $2,000 in debts. Because giving up an inheritance is an act for which Martine requires Nick’s help, and her decision means that she will not be able to reimburse her debts, Nick can ask that Martine’s decision be cancelled.
Contracts made before the adviser is named are harder to cancel. To cancel them, it must be shown that when the protected person made the contract, he made it without any pressure and with an understanding what he was getting himself into.
What happens if the adviser is not doing his job or is doing it badly?
When an adviser is not doing his job properly, it is possible to contact the Public Curator or ask that he be dismissed. This means the job of adviser is taken away from him. The protected person himself, someone close to the protect person or any other person with a special interest in the protected person can ask the court to dismiss and replace an adviser.
Even though he does not have a duty to supervise advisers, the Public Curator can investigate things that seem to be wrong or an adviser’s abuse and ask the adviser to correct the situation.
There is no tutorship council to supervise the adviser, like there is with tutorship and curatorship. (The council is a group made up of the protected person’s friends and family.) This is because this kind of protective supervision gives the protected person a lot of freedom and the adviser does not manage the protected person’s property or represent him.
What happens if the adviser can no longer do or does not want the job?
If the adviser dies, can no longer do the job (because of an illness or accident, for example) or quits, someone must request the court or a notary to name a new adviser.
Once again, the court or the notary must make sure that the proposed replacement has the necessary abilities and time. The opinions of the protected person and his family will be taken into account.
What is an adviser to a prodigal?
It is possible to name an adviser to protect a “prodigal” adult. A prodigal is a person who squanders his money and property without really being able to control himself. To ask for this, the court must be convinced that the prodigal’s behaviour creates a danger to his married or civil union spouse or minor children (children under 18).
The adviser to a prodigal has the same role and responsibilities as a regular adviser to an adult. He therefore helps manage the person’s property until the person no longer needs help.
It is rare to appoint an adviser for a prodigal. When a person squanders his property to the point of putting his family in danger, it is more common to appoint a tutor.