Your mother, Manon, is 88 years old. She is in the hospital after spending several hours downtown in the middle of winter wearing nothing but her pyjamas. She has Alzheimer’s and doctors have painted a discouraging picture of her mental health. The disease is getting the better of her.
You’re worried. Your mother has always been independent. She led a good life: house, car, volunteer work, travel. She took advantage of the money she saved for retirement. Now who will make decisions about her health and property?
When a person becomes unable to make these decisions and does not have a protection mandate (used to be called “mandate in case of incapacity”), there are legal ways to protect that person by naming someone to make these decisions on his behalf.
In this article, Éducaloi explains one kind of protection, called curatorship for adults and the role of the Curateur public (public curator).
What is curatorship for adults?
It is a form of “protective supervision”, which is a legal protection for adults who cannot exercise their rights or manage their property on their own. This state of being unable to make these decisions is called incapacity.
Curatorship is for adults who suffer from a total incapacity, for example, a person whose mental abilities have been seriously affected by illness or accident. With curatorship, the incapacity must also be permanent. This could be the case, for example, with a degenerative disease like Alzheimer’s.
When the incapacity is only partial or temporary, tutorship is more appropriate because it allows the protected person to keep some decision-making power. Also, tutorship can be adapted to the person’s particular situation.
Curatorship is the most drastic kind of protective supervision, but it is always used in the best interests of the protected person. It is meant to ensure his protection, make sure his property is well-managed and give him a way to exercise his rights.
With curatorship, the protected person does not really have any independence. He must always be represented by his curator, who is the person the court names to make all decisions regarding the protected person’s property and well-being.
What is a curator?
A curator is the legal representative named by the court to represent a person who has become incapacitated, ensure his protection and manage his property.
Here are some examples of when the curator will act as the protected person’s legal representative:
- sale of a building
- paying bills
- decisions regarding the person’s health
- depositing cheques
Who can be a curator?
Anyone in the circle of friends and family of the person needing protection can be named as his curator, as long as the person is an adult or emancipated minor (person under 18 with some or all of the rights of an adult). This is called “private curatorship”. The curator can be a spouse, partner, family member, friend or another person close to the protected person.
If no one in the protected person’s circle of friends and family can or wants to be the curator, the court will name the public curator to act as the person’s curator. This is called “public curatorship”.
What are the curator’s responsibilities?
The curator must watch out for the overall well-being of the person he is protecting. He will act on behalf of the protected person when that person needs to exercise his rights. The curator must always take into account the life circumstances, needs, mental state and other aspects of the protected person’s situation.
Depending on his needs, a person might have 2 curators: one who looks after his physical and mental well-being (called a curator “to the person”) and another who looks after his property. There can only be 1 curator to the person, but there may be several for property. It is common for 1 person to take on both roles.
Here are the curator’s main responsibilities:
Well-Being of the Person under Curatorship
- looking after the custody and care of the incapacitated person. (This responsibility can be given to a residential care centre, a hospital or any other institution suited to the needs of the protected person.)
- maintaining, as far as possible, a personal relationship with the person under curatorship
- when possible, getting the person’s opinion and informing him of decisions that concern him
- authorizing or refusing medical care for the person under curatorship when necessary
- representing the person in the exercise of his civil rights and in all legal proceedings
- every 5 years, obtaining a re-evaluation of the incapacity of the person under curatorship
Managing the Property of the Person under Curatorship
- making a list of the property to be managed within 60 days of the judgment putting into place the curatorship
- giving an annual report on the property managed
- making a final report at the end of the curatorship
- sending a copy of these documents to the tutorship council and the public curator
To learn more about tutorship councils, see the question “Can the curator make decisions about the person under curatorship by himself?”
What are the curator’s responsibilities regarding the property of a person under curatorship?
The curator must protect the property of the person under curatorship, but he must also make it increase in value. For example, the curator may decide to:
- lend, sell or hypothecate the property of the person under curatorship, unless this would put him at odds with the interests of this person
- make investments that are presumed sound (e.g., real estate, guaranteed investments, bonds, etc.)
The curator must also give a report on his management of the property to the tutorship council and the ppublic curator justifying everything he has done in the name of the person under curatorship. This allows them to make sure that the curator manages the property honestly and carefully. The curator must also give a final report at the end of the curatorship.
Note that when it is the public curator who is acting as curator, the powers of management are more limited. For more information on this subject, consult our article The Public Curator and Protecting Vulnerable Adults.
Can the curator make decisions about the person under curatorship by himself?
In principal, yes. Because he has a lot of different powers, the curator can make decisions alone about the person under curatorship. However, his conduct and his management of the curatorship are supervised by the tutorship council and public curator.
Even though it is called a “tutorship” council, this mechanism also exists for curatorships. It is usually made up of three people chosen during the meeting of parents, relatives or friends of the person under curatorship. It can also consist of one person, if the court gives its permission.
However, when the public curator is acting as curator, he must get permission from the court for some decisions. To learn more, consult our article The Public Curator and Protecting Vulnerable Adults.
Can acts done alone by a person under curatorship be cancelled?
Contracts and other acts done alone by a person under curatorship, when he should have been represented by his curator, can be cancelled, even if they do not cause him damage.
For example, Manon, who is under curatorship, sells her old television to a neighbour for $20 and buys a new television for $1,000. Manon’s curator can have these acts cancelled by proving to the neighbour and the store that Manon was under curatorship at the time. The neighbour will have to return the television when he is given back his $20, and the store will have to reimburse Manon $1, 000 when the television is returned. Cancelling the purchase is possible even though Manon can afford $1,000 television.
Contracts made before the curatorship started can also be cancelled or the amounts involved reduced if the other party knew about the person’s incapacity or if his incapacity was notorious (generally known).
Does the curator have the right to a salary?
The curator is not paid for his work unless the court says, in the judgment putting the curatorship into place, that he should be paid, and the situation allows him to be paid.
However, when the public curator is responsible for managing a person’s property or protecting his well-being, the public curator’s fees are paid for out of the money or property of the person under curatorship. These fees will vary depending on the nature of the work and the time spent on each file.
What is the role of the public curator?
In addition to acting as curator for certain people, the public curator’s informs private curators of their duties and responsibilities. For example, as soon as someone is appointed as a private curator, the public curator sends him a practical guide.
The public curator also supervises private curatorships. He can, among other things, intervene in any legal procedures concerning a person under curatorship, particularly when the curatorship is first put into place. The public curator also examines lists of property managed by the curator, reports and accounts filed by the curator.
What can be done if a curator is not doing his job or is doing it badly?
When a curator is not doing his job properly, the public curator can intervene or the curator can be dismissed, which means the job of curator is taken away from him. A person under curatorship, the tutorship council, the public curator or any other person with a particular interest in the situation can ask the court to dismiss and replace a curator.
However, if the public curator notices that things are wrong in a curator’s management, it can simply ask him to correct the situation without applying to the court for his dismissal.
The court may allow the public curator to take over a curatorship until a replacement for the curator has been named.
When does curatorship end?
Curatorship usually ends when the protected person dies.