Humans are not invincible. An illness or an accident could affect your ability to take care of yourself or your property. A protection mandate lets you choose who will make decisions for you if you are no longer able to take care of yourself or your property.
Protection mandates used to be called “mandates in case of incapacity”.
A Document to Name Who Will Act for You
A protection mandate is a document that lets you choose who will make decisions for you if you can’t do it yourself.
The person you choose is called a “mandatary”. This person will have to make decisions for your well-being, your health, or your property if you become incapacitated and you are no longer able to make these decisions yourself.
Choose One or More Trustworthy People
Choosing your mandatary is an important decision. You must trust the person who will make decisions for you.
You can choose only one person or several people to make decisions for you. For example:
- You name your two brothers as mandataries. One will be your “mandatary to the person”. He will take care of your well-being and health care. The other will be your “mandatary to property”. He will take care of your money and your property.
- You name your three children your mandataries. Together they make all the decisions about your well-being and your property.
If you choose several people, you can set rules for decision-making. For example, you could say that two-thirds of mandataries must agree before making a decision. In this way, you can prevent conflicts and stalemates if your mandataries don’t agree.
It’s a good idea to name one or several replacements in case the person you chose no longer wants to take on this role or is no longer able to do it (for example, if the mandatary dies).
Paying the Mandatary Is Your Decision
You can plan to pay your mandatary a salary. If you don’t indicate a salary in your protection mandate, the mandatary can only be reimbursed for expenses made in your name.
Choose Someone to Take Care of Your Children
You can also name a tutor to take care of your minor children if the other parent cannot do so. You can name your mandatory as tutor or choose someone else you trust.
Give Instructions for Respecting Your Wishes
The instructions in your protection mandate will guide your mandatary’s decisions. This helps ensure that your wishes will be respected when you can no longer express them yourself. You can give instructions about your well-being and your property.
Instructions About Your Well-being
Your mandatary will look after your physical and mental well-being. For example, the mandatary must:
- make decisions about your housing;
- make sure your personal needs are met (clothing, personal hygiene products, etc.);
- make sure you can enjoy leisure activities;
- consent to health care on your behalf (within certain limits because you keep some autonomy for these decisions); and
- take legal action in your name for issues that affect you.
You can give your mandatary instructions about your well-being. For example, you can say that you would prefer living at home as long as possible instead of moving into a long-term care home.
You can also give instructions about health care you want or don’t want.
Important! Advance medical directives are another way to express your wishes in advance about health care you want or don’t want. If you’ve prepared advance medical directives, they will take priority over your protection mandate if you are in one of the situations in which they apply.
Instructions About Your Property
Your mandatary manages your property, your debts, and your financial interests. This includes:
- administering your income, such as your retirement pension, disability pension, or social assistance (welfare) benefits;
- paying your bills, such as housing, electricity, taxes, and credit cards;
- managing your assets, such as making investments or renovating or selling a building;
- recovering any debts that someone owes you; and
- taking legal action in your name for issues related to your property.
You can give your mandatary instructions about how to manage your property. For example, you can say that all your property can be used by your family. Your mandatary could then use the money in your bank account to pay for your child’s education.
Limit What Your Mandatary Can Do
To reduce the risk of abuse, you can limit your mandatary’s powers.
For example, you can require your mandatary to:
- get the agreement of one or more people to sell specific property, such as your house
- give annual reports to someone you trust about how your property is being managed
- make a list of your property as soon as you have been declared incapacitated
- have your incapacity re-evaluated on a regular basis
How to Make Your Protection Mandate
A protection mandate must be made in a certain way to be valid. The two ways to make a protection mandate are by a notary or in front of two witnesses.
This protection mandate is made by a notary. A notarized mandate is harder to challenge in court because the notary makes sure that you understand your protection mandate and that it represents your wishes. The notary keeps the original copy and then records it in the Registers of Testamentary Dispositions and Mandates of the Chambre des notaries (notaries’ association).
By hiring a notary, you will benefit from personalized legal advice, but you must pay the notary’s fees.
Mandate in Front of Two Witnesses
This protection mandate must be signed by you and two witnesses. The witnesses confirm that you are able to express your wishes and understand the consequences. The witnesses cannot be people who play a role in your mandate.
The mandate in front of witnesses can also be written by a lawyer. The mandate is then registered in the Registres des testaments et mandats du Barreau du Québec (law society’s registry of wills and mandates). By hiring a lawyer, you will benefit from personalized legal advice, but you must pay the lawyer’s fees.
You can also choose to write your protection mandate yourself. You can use the model protection mandate on the website of the Curateur public (public curator), but you are not required to do so.
Changing Your Protection Mandate
You can change your mind and update your protection mandate if you are not incapacitated. You must update it in one of the two possible ways of making one: by a notary or in front of two witnesses. Or, you can make a completely new one.
After you change your mandate, destroy all available copies of your old protection mandate and tell your mandatary and your loved ones. Your new protection mandate will be the one that will be respected. If you use a notary or a lawyer, the new mandate will be registered in the appropriate registry.
Update your protection mandate every two to five years or when an important change happens in your life (death of your mandatary, important purchase, etc.). This makes sure that it still reflects your needs and your wishes.
Your Loved Ones Need to Know Where to Find It
Tell your mandatary or mandataries about your protection mandate and tell them where you keep a copy. They will need it to use it.
Using Your Protection Mandate When the Time Comes
Your protection mandate does not automatically take effect when you become incapacitated. The court must make your mandate “official”. This procedure is called “homologation”.
For more information on homologating a protection mandate, see our guide Homologation: Using a Protection Mandate.
Once your mandate has been homologated, your mandatary can act in your name for as long as you are incapacitated and your mandatary is able to do the job.
Protections If Your Mandatary Is Not Doing the Job Properly
Anyone who is concerned about your well-being can inform the Curateur public du Québec (public curator) of the situation.
It is also possible to ask the court to take your mandatary’s powers away.
What If You Don’t Have a Protection Mandate?
If you don’t have a protection mandate, anyone close to you (your spouse or partner, a family member, a friend, or another loved one) can ask the court or a notary for protective supervision of you.
For more information: Éducaloi’s guide Protection Mandates: Naming Someone to Act for You