Incapacity: Being Unable to Care for Yourself

An unfortunate event, or simply aging, could one day deprive you of the ability to take care of yourself or manage your affairs. The inability to make your own decisions is called “incapacity.” Incapacity impacts your daily life, but there are ways to protect yourself and to ensure your choices are respected.

Causes of incapacity

“Incapacity” means you’re unable to care for yourself or your affairs. It’s important not to confuse incapacity with physical health problems. You can have a physical health problem and still be fully capable of making your own decisions.

Here are some examples of conditions or events that can lead to a person’s incapacity:

• an intellectual disability,
• head trauma,
• a stroke,
• a degenerative disease, like Alzheimer’s.

You are capable until proven otherwise

All adults are presumed to be capable of taking care of themselves and their affairs. For a someone to be declared incapable, their incapacity must be proven in court. Among other things, medical and psychosocial assessments must be carried out. These assessments establish the person’s level of capacity.

To learn more about medical and psychosocial assessments, visit the website Quebec.ca.

Case-by-case basis

People can have different levels of capacity and be more or less independent. A person’s capacity can evolve over time. Sometimes, a person becomes incapacitated only for a certain amount of time. In other situations, a person becomes permanently incapacitated.

Here are some examples:

• Caleb, 16, suffers a severe fall while skateboarding and ends up in a coma. Since he can’t make decisions, his family must decide on his care. Fortunately, after a few weeks and with therapy, he improves and regains his abilities. His incapacity was temporary. 
• Simone, 67 years old, is diagnosed with Alzheimer’s disease. Over time, her family and doctors notice that she can no longer manage her finances or make important decisions. This loss of ability is irreversible, making Simone permanently incapacitated. 

The impact of incapacity on your life

You won’t necessarily need protective measures if you become incapacitated. For example, it might not be necessary if your loved ones are caring for you or your finances are easy to manage. 

If you’re married (or in a civil union), your spouse can continue to take care of basic family needs on your behalf, such as electricity, heating, housing and groceries. To learn more about these solutions, visit the website Quebec.ca.

If you have a lot of assets or need a higher level of protection, the court can homologate your protection mandate, if you have one. Homologating it means making it official. A protection mandate is a document that names someone you trust to take care of you and your affairs. A protection mandate can’t be used until the homologation process is complete. 

The homologation process makes sure that you’re incapacitated and that using a protection mandate is the best way to protect you. The process can take a few months. The process is started by the person named in your protection mandate. They can file their homologation request online using the portal for non-contentious proceedings (French only).

If you don’t have a protection mandate, the court can establish a tutorship. A person close to you will be appointed to care for you and your finances. The Public Curator can be appointed as your tutor as a last resort if no one else is available.

The court can also decide that you need someone to represent you only in certain situations, for example, for a specifical legal act such as selling a house. The court can appoint a temporary representative in this case.

Promoting your autonomy

If you require protection because you’ve become incapacitated, the court will make sure your needs are met while leaving you as much autonomy as possible. Respecting the autonomy of an incapacitated person means respecting their wishes and preferences.

Below are some examples of what a court might determine an incapacitated person is still allowed to do, depending on 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 and federal elections.

Act now so your choices are respected later

You can act now to guide the people who’ll be taking care of you later if you become incapacitated. Your preferences and your choices will then be taken into account.

To have someone you trust look after your everyday personal care and your finances, you can make a protection mandate.

For health care decisions, you can make advance medical directives. These let you say now whether you accept or refuse certain types of medical care which you might need in the future. The directives will apply if you become unable to consent to care.