If a person is no longer able to care for themselves or manage their finances, a court can appoint a tutor for them.
Establishing a tutorship involves several steps. This ensures that the tutorship is in the best interests of the person concerned.
Who takes these steps?
The steps for establishing a tutorship are usually carried out by a someone close to the incapacitated person, such as a spouse, a family member or someone who has a special connection with the person.
You can ask the court to establish a tutorship for a person once they turn 17, but the tutorship can only take effect at age 18.
Sometimes the incapacitated person can ask for a tutorship to be established.
Before making the request
Before taking steps to establish a tutorship, you should check a few things with the incapacitated person and the people close to them.
For example, does the person have a protection mandate? Is the family aware that the person needs protection? What is the person’s opinion about the tutorship?
Arrange for medical and psychosocial assessments
Before a tutorship is established, the person must be evaluated by a doctor and social worker. These assessments will help determine whether the person is incapacitated and whether they need to be represented by a tutor.
Apply to establish a tutorship
There are two ways to submit a request to establish a tutorship:
- with a notary
- in court
With a notary
A notary can prepare several documents and carry out various steps, such as meeting with the incapacitated person and advising their family members of the application to establish a tutorship. The notary will then file the required documents in court. It is the court that will decide whether or not to establish a tutorship.
If anyone opposes the tutorship, including the person concerned, the tutorship cannot be established in this way.
You can also establish a tutorship by applying to the court. In this case, you must file several documents in court, inform the person’s family members of the application and eventually go to court.
A lawyer can also help with the process.
You can visit Quebec.ca to learn more about the documents required and the steps to follow if you apply for a tutorship in court.
Different people can provide their opinions during the process
Whether the request is made through a notary or in court, the people close to the person must be advised of the tutorship application. Various people can express their opinions about the tutorship and the selection of the tutor.
The people close to the incapacitated person will be contacted to attend a meeting of relatives, people connected to the incapacitated person by marriage or by civil union, or friends. The people at the meeting choose the members of the tutorship council. The tutorship council supervises the tutorship, provides advice and ensures the tutor carries out their duties and provides an account of their actions. The tutor cannot serve on the tutorship council.
The court will also hear the person concerned to obtain their opinion and to determine whether they meet the legal definition of incapacity. The person can contest the tutorship application and be represented by a lawyer in court.
The court makes its decision
The court must consider several factors when deciding whether tutorship is the appropriate form of protection for the incapacitated person. The court can also determine which actions will still be carried out by the incapacitated person and which will now be assumed by the tutor. This is referred to as “modulation of the tutorship.”
For example, the court will consider these factors:
- the opinions of the person’s family members
- the medical and psychosocial evaluations
- the views, wishes and preferences of the incapacitated person
- the person’s level of autonomy
Reassessment, change or end of the tutorship
The tutorship can be modified when necessary to better meet the incapacitated person’s needs. The incapacitated person is usually reassessed every five years, but the court can provide a different timeframe.
If the tutor doesn’t perform their duties properly, an application can be filed in court to have the tutor dismissed; the situation can be reported to the Public Curator. The court can also end the tutorship, for example, if the person regains their capacity.