The homologation of a protection mandate, formerly known as a mandate of incapacity, is crucial to protecting the interests of individuals in the event of incapacity. This legal process confirms the validity and legality of a protection mandate.
When one of our loved ones begins to show signs of cognitive decline, it is reasonable to assume that they will one day no longer be able to fully exercise their civil rights (conducting transactions, making medical decisions, etc.). If the situation requires it, the incapacitated person or one of their loved ones can apply for a protection mandate.
However, even if a protective mandate is granted, it must be homologated in order to be legally valid. This article examines in detail how a protection mandate is homologated, the importance of this process and the documents required to initiate the procedure.
What is a protection mandate?
A protection mandate is a legal procedure usually undertaken by a person who is in the process of losing their autonomy (the mandator) or their caregiver. The mandate designates a person to protect the incapacitated individual and manage their property once they are unable to do it for themselves due to a cognitive disorder, mental health problem or bodily injury.
The appointed person will be considered a mandatary in the eyes of the law. That means that they will be responsible for protecting the incapacitated person and managing their property. Because the procedure is subject to strict judicial control, a protection mandate must be validated by a court in order for the mandatary to carry out their responsibilities legally.
Homologation of a protection mandate
The homologation of a protection mandate is the process by which a court or competent authority validates and confirms the legality of a protection mandate. Once homologated, the mandate becomes legally binding, allowing the person designated to act on behalf of the incapacitated person to make decisions on their behalf in accordance with the terms of the mandate. This process ensures that the wishes of the person concerned are respected, and that their affairs are managed according to their instructions.
Why must protection mandates be homologated?
If you want to act on a protection mandate, homologation is essential, because it is the process that makes the mandate official.
By homologating the mandate, the mandatory is permitted to access the incapacitated person’s financial information and make medical decisions in their name. The mandatary is responsible for having the mandate homologated once the person in question is found to be incapacitated.
Obtaining a protection mandate
The main mission of the Curateur public du Québec is to protect incapacitated people and the property of minors. The Curateur ensures that the decisions made by tutors and mandataries are fair and in the incapacitated person’s best interests. The Curateur is the person to contact about obtaining a protection mandate in Quebec.
The homologation of a protection mandate in 7 steps
To homologate a protection mandate, you’ll need to carefully follow the steps laid out by the Curateur public du Québec.
1. Preparing the documents needed to open protective supervision
First, you’ll need to submit a request to open protective supervision. To find out more about the details of the process, consult the Curateur public du Québec website.
2. Medical and psychosocial assessment
Before a protection mandate can be validated, the person in question must undergo a medical assessment by a physician and a psychosocial assessment by a social worker, either in the public health sector or the private sector. The assessment provides the court with the information it needs to determine the extent of the incapacity and whether or not the mandataries are able to take on the responsibility.
In the public sector, it can take up to a year to obtain a medical report. If you’re in a hurry, we advise you to use the private sector. Delays will be much shorter, but costs will be higher.
3. Identification of the most recent protection mandate, if any
Before approving a protection mandate, the court will seek to verify that it accurately reflects the wishes of your loved one’s. To do this, judges generally ask you to present the most recent protection mandate drawn up by your loved one.
To make sure you have the most recent protection mandate, you can :
- Ask your loved one directly if they have already drawn up a protection mandate
- File a search request with the Register of Testamentary Dispositions and Register of Protection Mandates of the Chambre des notaires du Québec
- File a search request with the Register of Testamentary Dispositions and Register of Protection Mandates of the Barreau du Québec.
These searches can take between 2 and 3 weeks.
4. Submitting a request to have the mandate homologated
The mandatary must then submit a homologation request to a notary or to the Superior Court of the judicial district where the incapacitated person lives. The original copies of the protection mandate and medical assessments must be included with the request. You will also be asked to provide the mandator’s birth certificate and identification, as well as a search certificate from the Register of Testamentary Dispositions and Register of Protection Mandates of the Chambre des notaires du Québec and the Register of Testamentary Dispositions and Register of Protection Mandates of the Barreau du Québec.
5. Serving the application
Once the request has been submitted, it must be served to the person in question through a bailiff. The person will receive the notice of presentation indicating the date on which the application will be submitted to the court, as well as the application for probate and a notice informing them of their rights. Substitute mandataries and two other people close to the incapacitated person (family, friends, loved ones, etc.) are notified, and the Curateur public is also made aware of the request.
6. Analysis of the application by the court and questioning of the incapacitated person
On the date indicated on your notice of presentation, a judge or special clerk will review the file to ensure that your loved one is truly incapacitated, that the mandate of protection is valid, that you are capable of fulfilling your role without conflict of interest, and that your loved one’s wishes are respected as much as possible. To do this, the person to be protected must be interviewed by an accredited notary or special clerk. This allows the notary or clerk to assess the degree of incapacity of the individual, to determine the authenticity of the protection mandate and to fully understand that individual’s wishes.
The judge or special clerk will contact your loved one and invite the persons concerned to present their observations. Additional measures may be taken, such as ordering the notification of documents by other persons, convening a meeting of relatives or friends, or demanding additional notices or reports.
7. Final ruling
Once all of the steps listed above have been completed, the court will make its final ruling. The mandator is notified of the decision, which gives the mandatary official permission to assume the role.
If the court finds that a protection mandate is insufficient to protect the person, it may decide to place them under tutorship or curatorship.
When to homologate a protection mandate
In general, a protection mandate is homologated when the person who drew it up becomes incapacitated as a result of illness, accident or any other circumstance, rendering them incapable of managing their affairs or exercising their rights.
It is advisable to draw up a protection mandate before the person becomes incapable of making decisions, to be sure that their wishes are respected. However, even if this has not been done in advance, it is still possible to have a protection mandate homologated when the situation requires it.
Time frame for homologating a protection mandate
The time required to homologate a protection mandate can vary depending on several factors, including your jurisdiction, the court’s workload, the complexity of the mandate and whether there are any challenges or objections to consider. In general, the process can take from several weeks to several months. On average, it takes 3 to 6 months to gather all the documents, and a further 3 to months for the homologation procedure. It is advisable to start the process as soon as possible to be confident that the mandate is already in place when it becomes necessary.
Who can apply for a protection mandate?
In general, any interested person can apply for a protection mandate. This may include the person who drew up the protection mandate, a family member, a relative, a friend or any other person affected by the mandate. In addition, in some jurisdictions, specialized lawyers may be mandated to act on behalf of the person seeking the protection mandate. The court or competent authority will examine the application and take the necessary steps to assess the validity and legality of the request.
Is it mandatory to homologate a protection mandate?
Homologation is mandatory for several reasons. It confirms the validity and legality of the mandate, which can facilitate its implementation in situations where the person designated to act on behalf of the incapacitated person has to make important decisions concerning their personal or financial affairs. It also provides additional legal protection in the event of a dispute or litigation concerning the mandate. Finally, in certain circumstances, certain financial institutions or other parties may require proof of homologation to recognize the authority of the designated mandatary.
Documents required
The documents required for homologation of a protection mandate may vary depending on the jurisdiction, but in general, you will need to provide:
- Birth certificate of the incapacitated person
- Identity papers of the incapacitated person
- Medical assessment of the incapacitated person
- Psychosocial assessment of the incapacitated person
- Protection mandate
- Search certificate from the Chambre des notaires
- Mandate search certificate from the Barreau du Québec
- Marriage certificate if the incapacitated person is married
MedLégal can help you homologate a protection mandate
Making the decision to request a protection mandate for yourself or for an incapacitated loved one is always difficult. It can prove even more challenging if there is a legal dispute over the request.
If you are the unwilling subject of a request to homologate a protection mandate, the lawyers at MedLégal can help. If you are planning to make a homologation request, our experts can provide assistance with the process. Contact us to obtain the services of our human rights lawyers.