Who will look after you in case of an accident or illness that causes your incapacity? A protection mandate is a legal document that lets you choose who will act on your behalf if you’re no longer able to care for yourself. Protection mandates used to be known as “mandates in case of incapacity.”
Name the people who will act for you
A protection mandate is a document that lets you choose who will make decisions for you if you can no longer take care of yourself or your finances. The person you choose is called a “mandatary.”
Your mandatary will act when the time comes, that is, if you become incapacitated. A court must make your mandate “official” before it can be used. This procedure is called “homologation.”
For more information on homologation of protection mandates, see our guide Homologation: Using a Protection Mandate.
Choose one or more people you trust
Choosing your mandatary is an important decision. You must trust the person who will make decisions for you, and they must maintain a relationship with you while they’re acting as your mandatary.
Name several people as mandataries
You can choose several people to be your mandataries. For example:
- You name your two brothers as your mandataries. One will be your “mandatary for the person.” He will look after your well-being and decisions concerning your health care. The other will be your “mandatary for property.” He will take care of managing your money and finances.
- You name your three children as your mandataries. Together they make all the decisions about your well-being and your finances.
If you choose several people, you can set rules for how they make decisions. For example, you can say that two-thirds of mandataries must agree before making a decision. This could help prevent conflicts and stalemates if your mandataries don’t agree.
Plan for replacements
It’s a good idea to name one or several replacements in case the person you chose no longer wants to act as your mandatary or is no longer able to do it (for example, if the mandatary dies).
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 isn’t able to. You can name your mandatary as their tutor or choose someone else you trust.
Paying your mandatary is your decision
If you want to pay your mandatary a salary, you can mention this in your protection mandate. If you don’t indicate a salary, the mandatary must still be reimbursed for expenses made on your behalf.
Provide instructions to make your wishes known
The instructions in your protection mandate will guide your mandatary’s decisions. Your mandatary must follow your instructions as much as possible because they reflect your wishes and preferences.
You can also provide instructions concerning your well-being, your finances and the mandatary’s powers.
Instructions about your well-being
Your mandatary will look after your physical and mental well-being. For example, your mandatary must:
- make decisions about where you live;
- make sure your personal needs are met (clothing, personal hygiene products, etc.);
- make sure you can enjoy outings and leisure activities; and
- consent to health care on your behalf (within certain limits because you keep some autonomy for these decisions).
You can provide your mandatary instructions about these matters. For example, you can say 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 the types of health care you want — or don’t want.
Important! Advance medical directives are another way to express in advance your wishes about the types of 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’re in one of the medical situations where advance medical directives apply.
Instructions about your finances and assets
Your mandatary manages your property, debts and other financial interests. This includes:
- managing 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 any assets, such as making investments or renovating your property; and
- recovering any debts that people might owe you.
You can provide your mandatary instructions about how to manage your finances. For example, you can say that any of your assets could be used for the benefit of your family. Your mandatary could then use the money in your bank account to pay for your child’s education during your incapacity, for example.
Instructions concerning your mandatary’s powers
To reduce the risk of abuse, you can detail your mandatary’s powers in your protection mandate. For example, you can require your mandatary to:
- obtain the agreement of one or more people to sell a specific property, such as your house
- have your incapacity re-evaluated on a regular basis.
Legal rules for your mandatary to follow
All of your mandatary’s decisions must be made in your best interests, respect your rights, and safeguard your autonomy. They must take into account your wishes and preferences.
Your mandatary must follow certain steps throughout the mandate. This ensures they’re acting in your best interests. For example, your mandatary is usually required to do the following things:
- Prepare an inventory (list) of your property within 60 days after your mandate is homologated (made official by the court).
- Provide reports to someone you trust according to the timeline provided in your mandate, or at least every three years, concerning how your property is being managed. This is called “rendering account.”
These two responsibilities are provided in the law. If your protection mandate does not mention that your mandatary must prepare an inventory or provide reports, then three situations are possible, depending on when you prepared your mandate and when it was homologated.
Your mandatary’s responsibilities in each of these three situations
Your mandatary isn’t required to prepare an inventory or provide reports.
Your mandatary is required to prepare an inventory but isn’t required to provide reports.
Your mandatary is required to prepare an inventory and provide reports.
Protections if your mandatary isn’t doing their job properly
Anyone concerned about your well-being can ask the court to end your protection mandate or to establish a tutorship if your mandatary isn’t doing their job properly, or for another serious reason. A person who wishes to become your mandatary (in replacement of the current one) can also ask the court for permission to do so.
Any person concerned about your well-being can also report the situation to the Public Curator.
What if you don’t have a protection mandate?
If you don’t have a protection mandate, your loved ones (spouse, family member, friend or other person close to you) can ask the court or a notary to set up a tutorship for you. They can also request that temporary representation be arranged.