When one of our loved ones begins to show signs of cognitive decline, it is reasonable to assume that they will eventually no longer be able to fully exercise their civil rights (conducting transactions, making medical decisions, etc.).
If the situation requires, 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.
In this article, find out more about protection mandates and how and why they must be homologated.
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, the protection mandate must be validated by a court in order for the mandatary to carry out their responsibilities legally.
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 process for a protection mandate
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 and psychosocial assessment, 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.
3. 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.
4. Serving the application
Once the request has been submitted, it must be served to the person in question through a bailiff. 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.
5. Questioning the incapacitated person
Then, the incapacitated person must be questioned by an accredited notary or a specialized court clerk. This gives the legal professional the chance to assess the extent of the individual’s incapacity, the authenticity of the mandate and the person’s wishes.
6. 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.
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.
At MedLégal, we believe in ensuring that everyone’s human rights are respected. 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 our legal services!