Your aunt is very sick and the whole family is worried. She can’t manage her affairs and isn’t safe in her apartment. Who will pay her bills? Who will take care of her?
It’s not pleasant to think about losing your independence. But thinking about it now can avoid problems for you and your loved ones should you become incapacitated. This article explains how “protection mandates” (used to be called “mandates in case of incapacity”) can help you plan for the future.
What is a protection mandate?
It is a document that lets you name, in advance, one or several people to look after your well-being and manage your property if you become incapable of doing this yourself. In legal terms, this state of being unable to take care of yourself and your property is called “incapacity”.
The person you name in your protection mandate to look after your well-being and manage your property is called a “mandatary”.
What is the difference between a protection mandate and a will?
A protection mandate lets you name one or more people to take care of you and manage your property while you are incapable and still alive. A will lets you choose who will receive your property and how it will be distributed after your death.
What is the difference between a protection mandate and a power of attorney?
A protection mandate lets you name one or several people to take care of you and manage your property from the moment the court declares that you are incapacitated.
On the other hand, a power of attorney (also called a “mandate” or “ordinary mandate”) lets you name one or more people to act in your name even though you are capable of doing so yourself. For example, you could sign a mandate naming your brother as the person responsible for collecting and depositing rent from your rental properties because this is convenient for you and not because you are incapable of doing it.
As soon as you become incapacitated, a power of attorney is no longer valid. From that moment on, only a protection mandate is useful.
What if someone becomes incapacitated and doesn’t have a protection mandate?
If there is a need to protect you or your property and you do not have a protection mandate, anyone from your circle of friends and family (spouse, partner, relative, friend or someone else close to you) can ask the court to put into place protective supervision. Depending on the circumstances, an adviser, tutor or curator can be named to look after your well-being and manage your property.
Does a protection mandate have to be made in a certain way?
A protection mandate can be made in two ways:
A mandate made in front of a notary gives the document some authenticity. In other words, it will be harder to challenge in court. The notary certifies that you agree to the mandate and keeps the original copy. He then registers it in the register (listing) of mandates of the Chambre des notaires du Québec.
Mandate in the Presence of Witnesses
This type of mandate must be signed by you and two witnesses who can confirm that you are of sound mind. Being of sound mind means that you can express your wishes and understand the consequences of your decisions. The witnesses cannot be people who will benefit from the mandate, nor can they be named as mandataries. Be sure that people in your circle of friends and family know that you have a protection mandate. Those close to you should have a copy of the mandate and be able to track down at least 1 of the witnesses so your file can be submitted to the court if you become incapacitated.
A mandate in the presence of witnesses can also be written by a lawyer. This type of mandate will be registered in the Québec Bar’s register of mandates.
Who can be named as a mandatary?
It is a good idea to pick an adult you trust, because your mandatary will make decisions about your well-being and the management of your property. You can choose one person who will take care of everything or one person to look after your well-being and another to manage your property.
It is also a good idea to speak with the people you choose to let them know about the protection mandate and see whether they will accept this responsibility. It is also important to appoint one or more replacements. When the time comes, the people you chose may no longer want the responsibility or be unable to take it on. If none of the people you chose want to accept this responsibility and you become incapacitated, a court will not be able to make your mandate official. In these cases, it is better, while you still have all your mental faculties, to make a new protection mandate or to change the people named in your existing mandate.
What are the mandatary’s responsibilities?
The responsibilities depend on the role you give to your mandatary.
The “mandatary to the person” looks after the physical and mental well-being of the incapacitated person. For example, this mandatary must do these things:
- make decisions about the incapacitated person’s housing
- ensure that her needs are taken care of (clothing, personal hygiene, cigarettes, etc.)
- make sure she can participate in outings and leisure activities
- consent to health care (as allowed by the law, because the incapacitated person keeps some decision-making in this area)
- act in the name of the incapacitated person in legal matters involving her physical and mental well-being
The “mandatary to property” manages the incapacitated person’s property, debts and other financial matters. For example, the mandatory to property must do these things:
- manage the incapacitated person’s income (pensions, disability benefits, social assistance, etc.)
- pay her bills (housing, electricity, taxes, credit cards, etc.)
- manage her assets (make investments, renovate or sell real estate, etc.)
- collect, in her name, any money owed to her
- act on her behalf in legal proceedings regarding her property
Note that one mandatary can assume all of these roles if your protection mandate provides for this.
What can a protection mandate say?
A protection mandate gives the mandatary two fundamental responsibilities: looking after the well-being of an incapacitated person and managing her property.
It’s up to you to decide what powers you want to give to your mandatary and, to a certain extent, how he will exercise them. The contents of the document should be complete and precise to avoid any problems when going to court and when your mandatory uses the mandate to look after you or manage your property.
Here are some examples of things that can be included in a protection mandate:
- naming a tutor to look after your children if the other parent cannot do so
- instructions about your well-being. For example, you could indicate to your mandatary that you would prefer living at home as long as possible, instead of moving into a residence.
- instructions about managing your property. For example, you could say that all of your property can be used by your family. This would allow your spouse or partner to use the funds in your personal bank account to pay for your child’s studies should you become incapacitated.
- a salary for your mandatary. If nothing is said about this in your protection mandate, your mandatary will only have a right to be reimbursed his expenses.
- instructions about health care you want and don’t want.
Important! Making advance medical directives (DMA) is another way to express your wishes in advance about health care you want and don’t want. If you’ve prepared advance medical directives, they will have priority over a protection mandate.
How can you reduce the risk of abuse by a mandatary?
You can limit your mandatary’s powers in your protection mandate.
Here are some examples of limits imposed on a mandatory:
- getting the agreement of one or more people to sell property, for example, your house
- providing annual reports of the management of your property to a person you trust
- making an inventory (list) of your property as soon as you have been declared incapacitated
- having your incapacity re-evaluated on a regular basis
Can you change a mandate?
Yes. As long as you are not incapacitated, you can change your mandate.
Be careful! The document that changes your protection mandate must be made in a way that respects the same rules explained in the question, “Does a protection mandate have to be done in a certain way?”
You can also make a completely new mandate.
To make sure that your most recent mandate will be respected, destroy all copies of your old mandate and let your mandatary and those close to you know about the new mandate. If you go through a notary or a lawyer, they will make sure that the new mandate is registered in the right place.
Does a protection mandate come into effect automatically?
No. Before being able to use the powers in a protection mandate, a mandatary must get a judgment from the court regarding your incapacity. The judgment makes the mandate official. This procedure is called “homologation”.
Certain steps must be followed to homologate a protection mandate.
- Get professionals to do medical and psychosocial assessments of the person. Consult the person’s doctor or the health care facility closest to her. These assessments must conclude that the person is incapacitated, that is, unable to look after herself or manage her property.
- Ensure that the protection mandate was the last one the person signed and that it was not cancelled by her. You can do this by checking the person’s papers and two registers: 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).
- Get a certified copy of the protection mandate if it was made in front of a notary or, if it was made in the presence of two witnesses, get the original and track down at least one of the witnesses.
- Have a bailiff deliver the request for homologation the mandate and a notice to the person who created the mandate, the mandataries named in the mandate, Quebec’s Public Curator, yourself, and another member of the family of the person who created the mandate.
A lawyer or notary can help you.
Once these steps have been completed, the court or notary will speak with the person who gave the mandate to evaluate how incapacitated she is. The court in charge of studying the request for homologation will look at the file. It will make sure that the protection mandate respects the legal requirements and that the person who signed it was capable of understanding its contents when it was signed. The court will then decide whether the person is incapacitated and whether the mandate should be homologated.
The court can refuse to homologate a protection mandate if there is a very good reason to do so. This could be the case, for example, if a family member proves that the mandatary was violent toward the incapacitated person. In this case, and if there is no other protection mandate in existence, the court could decide to put into place “protective supervision”. To learn more, see our article Protective Supervision.
If the protection mandate is incomplete, the court can put into place protective supervision to complete it.
What if a mandatary is not doing his job or is doing it badly?
Anyone in the circle of friends and family of the incapacitated person, or anyone concerned about that person’s well-being can inform the Public Curator of the situation. The Public Curator will then investigate and take steps necessary to ensure that the incapacitated person is protected.
It is also possible to ask the court to dismiss the mandatary (take the job of mandatary away from him) and replace him with the other person named in the mandate.
If a replacement is not named in the mandate, or the replacement cannot or refuses to become the mandatary, the court can cancel the mandate and put into place protective supervision for the incapacitated person.
When does a protection mandate end?
The protection mandate ends:
- at the end of the incapacity (but only after the court recognizes that the person is now able to take care of herself and manage her property)
- on the death of the incapacitated person
The mandate also comes to an end for reasons that have to do with the mandatary. This can happen if the mandatary
- becomes incapacitated,
- declares bankruptcy (unless he is not paid for being a mandatary) or
- is dismissed by the court.
In these cases, the judge can put into place protective supervision to ensure that the incapacitated adult is protected.