A protection mandate must follow certain formalities to be valid. For example, you must be an adult and able to make your own decisions. A protection mandate can be prepared by a notary or signed in front of two witnesses. You can make changes to it as long as you’re still mentally and physically able to.
Your own protection mandate
You must prepare your own protection mandate. In other words, you can’t make a joint protection mandate with someone else.
However, if you prepared a joint protection mandate before November 1, 2022, you don’t have to make a new one. But if you want to make changes, you will have to prepare a new one, for yourself only.
Signing in front of a notary
This type of protection mandate is made in front of a notary. Documents prepared by a notary are “authentic.” This means they’re more difficult to contest in court because the notary makes sure you’re not incapacitated, that you understand the document, and that it states your wishes.
The notary keeps the original protection mandate and registers it in the mandate registry of the Chambre des notaires (professional order of notaries).
By using a notary’s services, you will benefit from personalized legal advice, but you must pay their fees.
Signing in front of two witnesses
This type of protection mandate is signed by you in front of two witnesses. The witnesses confirm that you’re able to express your wishes and understand the consequences. Your witnesses can’t be people who would play a role in your mandate.
You can write your protection mandate. You can use the model protection mandate on the Quebec.ca website, but you don’t have to. In any event, it must be signed by you and two witnesses.
The mandate in front of witnesses can also be drafted by a lawyer. It is then registered in the mandate registry of the Barreau du Québec (Quebec bar association). By using a lawyer’s services, you’ll benefit from personalized legal advice, but you must pay their fees.
To use a protection mandate signed in front of two witnesses, your mandatary must ask one of the witnesses who was present when you signed your mandate to provide a sworn declaration. You should keep this in mind when choosing your witnesses.
Changing your protection mandate
You can change your mind and update your protection mandate if you’re not incapacitated. You must update it in one of the two ways a protection mandate can be made: by a notary or signed in front of two witnesses. You can also make a completely new one.
If you make a new protection mandate, destroy all copies of the old one and tell your mandatary and your loved ones. Your new protection mandate is the one that will be followed. If you use a notary or a lawyer, the new mandate will be registered in the appropriate registry.
It is wise to review your protection mandate every two to five years or when an important change happens in your life (death of a mandatary, major purchase, separation, etc.) to make sure it still reflects your needs and your wishes. If it doesn’t, you can update it or make a new one.
Tell people where to find it
Talk about your protection mandate with your mandatary or mandataries and tell them where to find it. They’ll need the original protection mandate to be able to use it.