Someone has named you as a mandatary in their protection mandate. This means they have a lot of trust in you! You’ll be overseeing their care and making decisions on their behalf. Here’s information to help understand your responsibilities.
When do your responsibilities begin?
The person who named you as their mandatary is called a mandator. Once they become incapacitated, your first responsibility is to have the protection mandate homologated, which means making it “official” so that you can use it.
The homologation procedure can be done in two ways: before a notary or before a court. Each of these options involve several steps. You can consult our guide “Homologation: Using a Protection Mandate” to help you prepare.
Your role as mandatary officially begins once the protection mandate has been homologated. You can refer to the protection mandate to learn more about your responsibilities and to check for specific instructions.
Will you be paid for your work?You’ll be reimbursed for reasonable expenses out of the funds belonging to the person who named you as mandatary. However, they decided whether you’ll receive a salary for your work when they drew up the protection mandate. You can check what the it says about payment. |
Acting in the person’s best interests
All of your decisions under the protection mandate must be made in the best interests of the person who named you mandatary. You must respect their rights and autonomy throughout the entire mandate. As much as possible, you must:
- maintain a personal relationship with this person;
- have them take part in all decisions; and
- inform them of your decisions.
You can also talk to their loved ones for guidance when making decisions. As a mandatary, you must follow all instructions in the protection mandate. These will guide you in making decisions on the person’s behalf.
Responsibilities that can be shared
Protection mandates can cover two aspects of the person’s life:
- Their well-being
For example, you can make decisions concerning their health care, make sure they take part in leisure activities, etc. A mandatary who is responsible for a person’s well-being is called a “mandatary to the person.”
- Their property and finances
You can, for example, pay their rent, their bills, etc. A mandatary who is responsible for administering a person’s property is called a “mandatary to property.”
A protection mandate can therefore provide these types of arrangements:
- One person acts as both mandatary to the person and mandatary to property.
- Two or more different people have different roles (for example, you are the mandatary to the person and your brother is the mandatary to property).
- More than one person carries out both roles (for example, both you and your brother are mandataries to the person and mandataries to property).
You could therefore be in a situation where several people act as mandatories for the same person. In this case, you must make decisions together in the best interests of the person. Check what the mandate says about how decisions should be made. For example, the mandate could state that decisions must be made unanimously or require the approval of 2/3 of the mandataries.
Your responsibilities as mandatary to the person
As mandatary to the person, you will look after the physical and mental well-being of the person under your care. For example, you must:
- make decisions about their housing,
- make sure that their personal needs are met (clothing, personal hygiene products, etc.),
- make sure they get out of the house and enjoy leisure activities, and
- consent to health care on their behalf (within certain limits because the incapacitated person keeps some autonomy for these decisions).
|
Check whether the protection mandate provides any specific instructions from the person you’re looking after concerning their well-being. |
Your responsibilities as mandatary to property
As mandatary to property, you manage the property, debts and other finances of the person under your care. This includes:
- managing their income, such as their retirement pension, disability pension or social assistance (welfare) benefits,
- paying their bills, such as housing, electricity, taxes and credit cards,
- managing their assets, such as making investments or renovating your property, and
- recovering any debts that people might owe them.
|
Check whether the protection mandate provides any specific instructions from the person you’re looking after concerning their property or finances. |
Protecting the person against abuse
During the mandate, you must ask for a reassessment of the incapacity of the person you’re caring for. You must do this as needed or based on the timeline given in the protection mandate.
There are also certain steps you must follow throughout the mandate to ensure you’re acting in the best interests of the person. Here are some examples:
- Prepare an inventory (list) of their property within 60 days after the mandate is homologated (made official).
- Provide reports to someone the person trusts according to the timeline provided in the mandate, or at least every three years, concerning the management of the property. This is called “rendering account.”
These are both legal responsibilities. If the protection mandate does not mention that you must prepare an inventory or provide reports, then three situations are possible, depending on when the incapacitated person prepared their 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.
The Public Curator can help you carry out your role by providing information about your responsibilities. The Public Curator also ensures that your actions are in the best interests of the person under your care and protect their autonomy.
Your responsibilities when the mandate ends
Several situations can put an end to your role as mandatary, and your responsibilities differ depending on the case.
Your responsibilities come to an end if you become incapacitated or if you die before the person under your care passes away. Your legal representative (mandatary, tutor, liquidator) must inform the Public Curator of the situation (as well as other people or organizations who should know).
Your role as mandatary also ends with the death of the person under your care. You must then render an account and inform the Public Curator that the incapacitated person has died.
You can also resign from your role as mandatary, for example, if the responsibilities are too much for you to handle. If the mandate provides for a replacement mandatary, you must inform this person before resigning as mandatary. You must also render account.
Your role can also end if you’re not doing your job properly or for another serious reason. In this case, a person can ask the court to remove you as mandatary. This request can be made by the replacement mandatary or any other person. You must render account in this case as well.