Death isn’t the only event that can turn the lives of your loved ones upside down. An unfortunate event could rob you of the ability to take care of yourself and manage your affairs. A lack of ability to make these decisions is called “incapacity”.
In this article, Éducaloi explains the consequences of incapacity and what can be done to make sure your well-being is taken care of if you become incapacitated.
What is incapacity?
Incapacity means a person is unable to care for himself or his property. There are different degrees of incapacity: it can be partial or total, temporary or permanent.
Here are examples of conditions or events that can lead to incapacity:
- a severe mental illness or intellectual disability
- a serious accident
- violent and repeated head trauma
- a stroke
- a degenerative disease (e.g., Alzheimer’s)
How do you determine whether a person is incapacitated?
It can be very hard to determine whether a person is incapacitated. Evaluating the situation can be complicated by feelings of denial, sadness and confusion. Friends and relatives might have different opinions and concerns, not to mention the person involved.
To get to the heart of the matter and determine whether a person really needs protection, the person should first be evaluated by professionals. In fact, an evaluation is usually a necessary step to putting into place protective supervision or homologating a protection mandate.
The evaluation has two parts:
The medical evaluation is done by a doctor and deals with the state of the person’s health. The doctor can identify conditions, illnesses and symptoms that might affect a person’s mental abilities. This evaluation also deals with the degree of incapacity.
The psychosocial evaluation is done by a social worker in the health services network or in private practice. The purpose of this evaluation is to determine the person’s ability to act independently and her need for protection. The professional will also try to determine whether the person should be cared for by family and friends or the Public Curator.
The professionals involved must complete an evaluation form to record this information and indicate the degree of incapacity (partial or total) and its duration (permanent or temporary). They also give their opinion on the person’s need for protection.
What needs to be done if a person is incapacitated?
When you see that a person is incapacitated or about to become so, one of the first things to do is check whether she has a protection mandate (used to be called “mandate in case of incapacity”).
A protection mandate is a document in which a person (the mandator) gives another person (the mandatary) the responsibility of looking after her physical and mental well-being or property if she becomes incapacitated. This should not be confused with a power of attorney, which allows a person to do certain things for another person when she is not incapacitated.
If a person has written a mandate, the mandatary must go to a notary or the court to have it homologated (made official). To learn more about homologation, see the question “What if an incapacitated person has a protection mandate?”
If there is no protection mandate, anyone who shows that they have a special interest in the person (family member, spouse, partner, friend, close relative, etc.) can ask the court to put into place protective supervision. A person who feels as though his mental abilities are failing can also ask for protective supervision.
How do you find out if a person has a protection mandate?
Here are some ideas on how to find out:
- Check the person’s files and personal papers.
- Speak with relatives and other people close to the person.
- Consult a notary or lawyer who can search in the mandate registries of the Chambre des notaires and the Barreau du Québec.
- Do your own search in the Registers of Testamentary Dispositions and Mandates of the Chambre des notaires and the Registre des mandats du Barreau du Québec (website in French only).
Note: For the last idea mentioned above, you will need the originals of the medical and psychosocial evaluations confirming the person’s incapacity. Also, there are fees to pay.
What if an incapacitated person has a protection mandate?
First, the mandate must be homologated, which means it is officially recognized and made effective. There are two ways to homologate a mandate in anticipation of incapacity: the person named as mandatary can ask either a notary or the court to homologate it. Either way, a court judgment will be given. It is only once a judgment has been given that the mandatary will be able to exercise the powers given to her in the mandate.
The purpose of homologation is to:
- confirm the existence and extent of incapacity (based on the medical and psychosocial evaluations)
- verify that a mandate exists and confirm that it is valid
- explore the possibility of putting into place protective supervision in the event the mandate did not take into account all possible situations
The court may refuse to homologate a mandate if there is a very good reason to so, for example, if the mandatary chosen by the incapacitated person has mistreated or abused him in the past.
What happens if an incapacitated person does not have a protection mandate?
To a certain extent, the law allows people close to an incapacitated person to look after his affairs. For example, someone who is married or in a civil union with an incapacitated person has the right to continue to take care of basic family needs in his name: electricity bills, heating, housing, groceries, etc. To learn more about these common situations, consult the website of the Public Curator.
However, if an incapacitated person owns things that are worth a lot or has a lot of money, or the need for their protection is great, protective supervision might be necessary. Anyone in the incapacitated person’s circle of family and friends can ask for one of the 3 kinds of protective supervision (advisers to persons of full age, tutorship or curatorship).
If there is no one in the person’s circle of friends and family who can or is willing to take care of him and his property, the Public Curator will take on this responsibility. This will only happen once the Curator has confirmed that there is no one else who can do this.
If someone close to the protected person wants to replace the Public Curator, a request must be made to the court. The Public Curator will give up this role if it thinks it would be in the incapacitated person’s best interests.
Can the incapacitated person still make decisions about health care?
Sometimes he can, sometimes he cannot. To a certain extent, an incapacitated person keeps the ability to agree to or refuse health care. To know whether an incapacitated person can make these decisions on his own, a doctor evaluates his ability to understand his illness, the care being suggested and the risks of accepting or refusing this care.
If the doctor decides that the person cannot make the decision, his mandatary, tutor or curator will make it. If the incapacitated person no longer has a mandatary, tutor or curator, the law provides that the following people, in order of priority, can agree in his place:
- spouse or partner
- close relative (child, parent, sister, brother, etc.)
- a person who takes care of him (friend, other family member, health and social services care-giver, etc.)
If the incapacitated person made advance medical directives, the person’s loved ones and medical staff must follow them.