Sometimes illness or an accident can have a significant impact on a person’s ability to make important decisions about themselves. It is important to determine in advance who will be responsible for this person should such an incident occur.
The protection mandate, aka “Power of attorney”
The protection mandate is designed to protect an elderly person in the event of a disability by appointing a person who can make the right decisions in the elderly person’s best interests related to their health, well-being and property.
The person chosen to carry out the protection mandate is a “mandatary” and the person appointing is the “mandator.” The decision to appoint a mandatary is very important and that person should be a trusted person.
The mandatary has several obligations. In particular, he must act with prudence and diligence. He must also act honestly and faithfully in the best interests of the mandator, and must avoid placing himself in a position where his personal interest is in conflict with that of his mandator. He must also act with honesty and loyalty in the best interests of the principal and avoid placing himself in a situation of conflict between his personal interest and that of his mandator.
The mandate may appoint a single mandatary or several mandataries. Sometimes a person may be appointed to make decisions for the person (a “mandatary to the person”) and another person to make decisions about the property (a “mandatary to property”).
The mandatary may act with or without remuneration. If it is with remuneration, this must be included in the protection mandate.
The protection mandate can include many explicit indications for the mandatary. For example, when it comes to accommodation and well-being, the mandator may want to indicate that he would like to remain in his personal residence for as long as possible rather than go to an elderly home.
The mandatary to the person takes care of everything that affects the mandator’s physical and moral well-being. For example, they must make decisions about accommodation, make sure the mandator’s needs are met, consent for the person’s health care, and take legal action for the person on matters that affect the mandator.
The mandatory to the property manages the person’s assets and makes all decisions in the mandator’s interest regarding property including: the administration of the income, the payment of bills, the management of assets, the recovery of the sums that are due or the act of taking legal action on the mandator’s behalf on any issue relating to the property.
A protection mandate can either be prepared be notarized or signed in front of two witnesses. I can be changed as long as the mandator is not incapacitated.
If the mandator becomes incapacitated the protection mandate must be homologated in Court in order to take effect. The mandatary can be replaced if he does not respect the obligations under law and does not act in the mandator’s best interests.
Our lawyers can help you prepare your protection mandate and have it homologated. We may also advise and represent you in matters of challenging a mandate or a replacement of a mandatory who is not acting in your best interests.
Other Legal protective measures
In addition to the protection mandate, there are three other types of protective supervision regimes for adults: protective supervision with an advisor, tutorship and curatorship.
The type of protection regime varies depending on the degree of incapacity of the person concerned to take care of himself or her property. The Public Curator may intervene in these matters in order to act as curator or tutor if he feels that no one is able to do so in the family or entourage of the person concerned. The Public Curator must be appointed by the court or can act automatically if the person concerned no longer has a tutor or curator. Before appointing a tutor or curator, usually an assembly of friends and family members is called to discuss and deliberate on the choice of curator or tutor.
The establishment of protective supervision is pronounced by the court.
Wills can be in a notarized, holographic or with witness. A will generally indicates who will act as liquidator and how the deceased’s property will be devolved. The testator can prepare a will as long as he is fit to do so.
In Quebec, if you do not have a will, the rules of the Civil Code of Quebec will apply to determine the devolution of your property. This is called a legal succession or “ab intestat.”
In cases where the will is holographic or made in front of witnesses, it will have to be homologated by the court.
The liquidation of the Estate that occurs ab intestat or with a will consists of several steps which include: identifying and contacting the heirs, making an inventory of the deceased’s property and debts, filing tax returns, paying the debts, giving a final report to the heirs and distributing the property. It is the liquidator’s role to comply with all the rules of the law and accomplish these steps.
In some cases, it is possible to request the replacement of a liquidator in Court, if there are grounds to believe that he is not complying with the obligations imposed on him by law. If you are an heir and you feel that your rights are not respected by the liquidator, you should consult a lawyer.
If you are a liquidator and are criticized for not meeting your obligations, you may also need advice and legal representation. We can help you in this type of situation.
This article contains general legal information and does not constitute legal advice. For legal advice about your personal situation, contact the Jurinovo team.