Are you worried that someone you care about is suffering from a loss of autonomy?
If so, a court can appoint a tutor to look after them and to manage their affairs.
Tutorship offers protection for incapacitated persons and takes their wishes and preferences into account.
As of November 1st, 2022, it is no longer possible to establish a curatorship for an incapacitated person. A court will instead name a tutor for them.
Curatorships that were established previously have been automatically converted to tutorships.
When to ask for tutorship
Sometimes a person can no longer care for themselves or manage their finances and property. This loss of autonomy is called incapacity.
Causes of incapacity include advanced age, a loss of mental ability or an accident.
The incapacitated person may not be able to carry out certain tasks and need protection. In this situation, they or someone close to them can ask for a tutor to be appointed to care for them or manage their finances and property.
Only when necessary
A person might only need representation for a specific act, such as signing a contract or selling a house. Therefore, instead of establishing a tutorship for this person, the court could appoint a temporary representative.
If the incapacitated person has a protection mandate, steps can be taken for the mandatary to use the protection mandate. In this situation, it won’t be necessary to establish a tutorship unless the protection mandate is insufficient to provide the protection required.
The tutor is often someone close to the incapacitated person.
The tutor is usually someone close to the incapacitated person, such as a spouse, family member or friend.
If no one close to the incapacitated person is willing or able to act as tutor, the court can appoint the Public Curator to do so. The Public Curator is a Quebec government organization that oversees the protection of incapacitated persons.
A tutor can be responsible for one or both of the following:
- the well-being of the incapacitated person
- management of their finances and property
Tutors must also ensure that the incapacitated person’s rights are exercised appropriately and respected. The tutor must always consider the incapacitated person’s preferences and involve them in decisions, according to their abilities.
To learn more about a tutor’s role, see our article Acting as Tutor for an Incapacitated Person.
Protection adapted to the incapacitated person
The tutorship must be adapted to the incapacitated person’s needs and respect their autonomy.
When a tutorship is established or reviewed, the court can determine which actions will be carried out by the person under tutorship (alone or with the help of a tutor) and which actions will be carried out by the tutor alone. This is referred to as “modulation of the tutorship.”
When making these decisions, the court considers the medical and psychosocial assessments that were carried out concerning the incapacitated person and the person’s opinion, whenever possible.
Below are some examples of what a court might determine the incapacitated person is still able to do, taking into account of 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 or federal elections.
Asking the court to establish a tutorship
To learn about how this process works, see our article on establishing a tutorship.
Modify, review or end the tutorship
The tutorship can be modified when necessary to better meet the incapacitated person’s needs.
The incapacitated person is usually reassessed every five years, but a court can shorten this period.
If a tutor neglects their duties, the situation can be reported to the Public Curator. The tutorship council must request the replacement of a tutor who does not meet their obligations. A court can also dismiss a tutor or end the tutorship if, for example, the person under tutorship is no longer incapacitated or if they have died.