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 (e.g., 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.
People can have different levels of capacity, and a person’s level can evolve over time. Sometimes, a person becomes incapacitated only for a certain amount of time. In other situations, a person becomes permanently incapacitated.
The impact of incapacity on your life
You won’t necessarily need protective measures if you become incapacitated, for example, 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 in your name, such as electricity, heating, housing and groceries. To learn more about these solutions, visit the website Quebec.ca.
If you have significant assets or need a higher level of protection, the court can homologate your protection mandate, if you have one, which means making it official. A protection mandate is a document that names someone you trust to take care of you and your affairs.
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.
Accepting or refusing health care
There’s a difference between “incapacity” to take care of yourself and your affairs and “incapacity to consent to care.” Your incapacity might mean that you can no longer decide whether to accept or refuse health care, but it’s not automatic.
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.