Your 20-year-old son has a mild intellectual handicap. For the most part, he gets along very well and his doctor notes that the illness only affects his ability to make decisions.
Your son can take care of himself and participate in activities. But sometimes he has difficulty understanding the consequences of his actions, and he relies on you a lot to get along in the wider world.
What should you do? The law provides for a way to protect him, called tutorship for adults. In this article, Éducaloi explains tutorship, the tutor’s responsibilities and the role of the Public Curator.
What is tutorship for adults?
It is a form of “protective supervision”, a legal protection that can be requested for an adult who is not able to exercise her rights and manage her property by herself. In legal terms, this state is called “incapacity”.
Tutorship gives the incapacitated person more decision-making freedom than curatorship. Tutorship can be put into place for adults who suffer from a temporary incapacity (for example, a lengthy hospitalisation following a serious car accident) or partial incapacity (for example, a person who suffers a mild intellectual handicap, but is still somewhat independent).
Tutorship is always used in the best interests of the incapacitated person. It is meant to ensure that she is protected, her property is taken care of and that she can exercise her rights.
If the adult’s incapacity is partial, tutorship allows the protected person to keep some independence: she can exercise her rights and manage her property as far as she has the mental capacity to make decisions and the ability to explain her wishes. The situation is similar to that of a minor, who can make small purchases but cannot make decisions that will have a serious effect on her property and finances, such as selling a house or giving up her right to an inheritance.
Who can be a tutor?
Anyone in the circle of friends and family of the person who needs protection, or anyone who has the person’s interests at heart. This could be a spouse, partner, family member, friend or anyone else close to the person needing protection. The tutor must be at least 18 years old or an emancipated minor. This is called a “private tutorship”.
If there is no one in the circle of friends and family who can or wants to be the tutor, the court appoints the Public Curator as the person’s tutor. This is called a “public tutorship”.
What is the tutor’s job?
The tutor must ensure the overall well-being of the person he is protecting. He acts for her when she needs to exercise her rights. He must always take into account her life circumstances, needs, mental abilities and the other aspects of her situation.
Depending on the needs of the protected person, a tutor may be named to look after the person’s physical and mental well-being, her property or both. A person can therefore have two tutors: one who looks after her physical and mental well-being and another who manages her property. However, it is very common for one person to assume both roles.
The court could also decide that a tutor to look after the person’s physical and mental well-being is not necessary, In this case, there would only be a tutor to manage the property.
Because a person under tutorship might keep some independence, judgments putting a tutorship into place sometimes describe what kinds of things the protected person can do on her own. If – as is often the case – the judgment does not say anything about this, the person under tutorship has a degree of independence similar to that of a minor.
What are the tutor’s responsibilities regarding the well-being of the person under tutorship?
Here are the responsibilities:
- looking after the care and custody of the person under tutorship, personally or by using a long-term care facility, supervised apartment, hospital, etc.
- as far as possible, maintaining a personal relationship with the person under tutorship
- when possible, getting the person’s opinion and informing him of decisions that concern him
- getting opinions and authorizations from the tutorship council and the court, when required. (For more on the council, see the question “What is the tutorship council?” in the article Protective Supervision.)
- authorizing or refusing medical care for the person under tutorship when necessary
- representing her in the exercise of her civil rights and in all legal proceedings
- every five years, getting a re-evaluation of the incapacity of the person under tutorship
What are the tutor’s responsibilities regarding the property of the person under tutorship?
Here are the responsibilities:
- within 60 days of the tutorship being put into place, making a list of the property to be managed
- if the property to be managed is worth more than $25,000, taking out insurance or providing security (a guarantee that can be a sum of money, certificate of deposit, savings bond, etc.)
- giving an annual report of the management of the property
- making a final report at the end of the tutorship
- providing a copy of these documents to the tutorship council and the Public Curator (For more on the tutorship council, see the question “Can the tutor make all of the decisions about the person under tutorship by himself?”)
Generally, the tutor must protect the property of the person under tutorship, make sound investments and give an annual report on his management to the Public Curator. This way, the Public Curator can make sure the tutor manages the property honestly and carefully.
If the person under tutorship fully regains the ability to take care of herself and her property, the tutor must also report to that person. If this never happens, the tutor will instead have to give a report to her estate after her death.
Can the tutor make all of the decisions about the person under tutorship by himself?
Not exactly. The tutor is helped by the “tutorship council”. The council is usually made up of three people chosen at a meeting of parents, friends or people connected to the person under tutorship by marriage or civil union. It can also be made up of one person if the court agrees.
The council supervises the tutor’s conduct and management of the tutorship, and gives permission for decisions made by the tutor when the law requires this. For example, the tutor needs the tutorship council’s permission to hypothecate property of the protected person or to take out a loan of less than $25,000 in the name of this person.
When the law requires it, the tutor must get permission from the court. For example, the tutor needs a judgment of the court and the tutorship council’s opinion to hypothecate the protected person’s property or take out a loan of $25,000 or more in the name of the protected person.
What happens if a person acts without being represented by her tutor?
Contracts signed and other acts done by a protected person when she should have been represented by her tutor are valid. They can only be cancelled if they cause serious harm.
For example, let’s say that Hortense, who is under tutorship, goes to a store by herself and buys a Blu-ray CD player. It turns out to be an excellent Blu-ray player, which Hortense needed to replace her old VHS cassette player and which she could afford. Because she does not suffer harm, the sale cannot be cancelled.
Contracts made before the tutorship is put into place can be cancelled or the amounts involved reduced if the other person involved in the contract knew that the person was incapacitated or if her incapacity was notorious (generally known).
Does the tutor have the right to a salary?
A private tutor taking care of the well-being of a person – also called a tutor “to the person” – is not paid unless the court says, in the judgment putting the curatorship into place, that he should be paid, and the circumstances allow him to be paid.
However, when the Public Curator is responsible for managing the property of, or protecting an adult under tutorship, its fees are paid out of the money or property of the person under tutorship. These fees will vary depending on the nature of the work and the time spent on each file.
What is the role of the Public Curator?
In addition to acting as tutor to certain people, the Public Curator informs private tutors of their responsibilities towards the people they represent. For example, as soon as someone is named as a private curator, the Public Curator sends him a practical guide.
The Public Curator also supervises private tutorships. He can, among other things, intervene in any legal proceedings concerning a person under tutorship, particularly when the tutorship is first put into place. The Public Curator also examines inventories (lists) of property, reports and accounts produced by the tutor.
What can be done if the tutor is not doing his job or is doing it badly?
When a tutor is not doing his job properly, it is possible to contact the Public Curator or ask that the tutor be dismissed, that is, take the job of tutor away from him. A person under tutorship, the tutorship council, the Public Curator or any other person with a particular interest in the situation can ask the court to dismiss and replace a tutor.
However, if the Public Curator notices that things are wrong in a tutor’s management, it can simply ask him to correct the situation without going so far as to apply to the court for his dismissal.
If the tutor is dismissed, the Public Curator will take over the tutorship until a replacement is named.
When does tutorship end?
Tutorship ends when the person under tutorship becomes completely independent and capable of looking after herself and her property or when she dies. This must be confirmed either in a report from the health or social services institution that looks after the person, or in a decision of the court. Tutorship also ends when the person dies.