Creating a protection mandate allows you to plan ahead by designating a trusted person who will manage your healthcare and assets if you become incapable of doing so yourself. This preventive document is designed to outline your wishes in case of incapacity, ensuring that the court does not impose an external guardian or tutor. By preparing your protection mandate in advance, you gain valuable control over the situation. Our protection mandate attorneys explain the steps to follow.
Why create a protection mandate?
A protection mandate is an important document to prepare because illness, an accident, or a mental disorder can render you incapable and prevent you from making decisions for yourself. The protection mandate gives you control: you choose the person to whom you will entrust these responsibilities. You can specify the scope of the powers granted, including access to your medical records, consent to medical care, management of your bank accounts, or the sale of property. This proactive choice helps avoid family conflicts and reduces the risk of judicial interference.
Creating a protection mandate in the presence of witnesses: the steps
A mandate in the presence of witnesses is a private document that any adult who is mentally capable can write themselves. It’s not necessary to consult a professional to create it, but imprecise or incomplete drafting can compromise its effectiveness. Each step is crucial.
1. Choose a Reliable Mandataire
Designating the mandataire is a major decision. This choice should be made carefully, selecting someone trustworthy who can handle the responsibilities with seriousness and integrity. You can appoint a single mandataire or multiple mandataires who will act jointly or successively, depending on your preferences. You can also designate a substitute mandataire, who will take over if the first one is unable to act.
The mandataire must be an adult and mentally capable. They should not have any conflicts of interest or a background that could compromise their role. The ability to communicate with healthcare professionals and manage financial matters should also be considered. Finally, ensure that the mandataire agrees to take on this responsibility.
2. Draft a Clear and Precise Mandate
The mandate should clearly express your intention to have one or more persons represent you in case of incapacity. It is advisable to include the following details:
- Full identity of the designated mandataire(s) (name, address, relationship to you);
- Powers granted (healthcare decisions, financial management, property management, etc.);
- Any limitations (e.g., not selling the family home);
- Reporting requirements (who the mandataire reports to, and how often);
- The designation of a substitute mandataire, if the primary mandataire is unavailable;
- Date and place of signature.
While you can use a template provided by the Public Curator of Quebec, personalizing it to your situation is strongly recommended.
3. Choose Two Qualified Witnesses
The Civil Code of Quebec requires that the mandate be signed in the presence of two witnesses. These witnesses must:
- Be adults;
- Be mentally capable of acting as witnesses;
- Not be designated as mandataires;
- Not have a direct interest in the mandate (e.g., heir, beneficiary).
The witnesses must sign the document immediately after you, on the same page or following the text, to confirm that they saw you sign and that you appeared to be of sound mind at the time of signing.
4. Sign the Mandate in the Presence of the Witnesses
You must sign the mandate yourself, in the presence of the two witnesses. This is a critical moment, as your signature confirms the document as voluntary. The document should not have any corrections or alterations made after your signature.
The mandate can be typed or handwritten. In the case of physical incapacity to sign, a third party may sign on your behalf, but only if it is done at your explicit request, in your presence, and before the witnesses. This signature is essential for ensuring the document’s validity during the possible homologation of the protection mandate.
5. Store the Document Safely
The original mandate is required when it is to be homologated. If the document is lost, even a signed copy is insufficient. It is advisable to:
- Keep the original in a safe place (safe, locked cabinet at home);
- Inform trusted family or friends of its existence and location;
- Provide a copy to your mandataire.
6. Register the Mandate with the Quebec Bar Association (Optional)
It is possible to register the mandate with the Quebec Bar Association, which allows for easy verification of its existence. This can significantly ease the process during homologation, especially in an emergency. A lawyer can handle this registration upon request.
Creating a Protection Mandate in Front of a Notary: The Steps
A notarial mandate is drafted in the presence of a notary, which gives it greater legal weight. It becomes an authentic act, difficult to contest, and quicker to homologate. This option is considered safer, especially in cases of blended families, complex estates, or legal vulnerability.
1. Initial Consultation with the Notary
During this meeting, the notary ensures that you are legally capable of consenting. They will ask you questions to:
- Verify your understanding of the mandate’s implications;
- Ensure your decision-making autonomy;
- Clearly establish your wishes.
The notary will also advise you on the clauses to include based on your personal, familial, and financial situation.
2. Customized Drafting of the Mandate
The mandate is drafted according to your instructions, using clear legal language in compliance with the Civil Code of Quebec. The following elements will typically be included:
- Designation of the primary mandataire and a substitute;
- Scope of powers granted (healthcare, property, transactions, communication with healthcare professionals, etc.);
- Mandataire’s obligations (inventory, accounting, consultation with close relatives);
- Clauses related to housing, home maintenance, end-of-life decisions;
- Your wishes regarding the revision or revocation of the mandate.
The notary may also suggest control mechanisms (e.g., notifying relatives, appointing a third party to supervise certain decisions).
3. Signing of the Notarial Act
The mandate is signed in the notary’s office, in their presence, without the need for additional witnesses. The notary will attest to your identity, legal capacity, and adherence to the conditions for validity. The notary’s signature legalizes the document, which then becomes an authentic act with full probative value.
The notary will provide you with a certified copy of the document. The original will be securely stored in the notarial archives.
4. Registration in the Registry of the Chamber of Notaries
The notary automatically registers the mandate in the Protection Mandates Registry. This step ensures that the document can be easily located, even years later, in the event of incapacity. Courts, lawyers, notaries, or the Public Curator can access it to verify the existence of the mandate.
5. Informing Relatives
Even though the document is protected, it remains important to inform your relatives about its creation. You can give a copy to the designated mandataire and your immediate family or simply tell them the name of the notary holding the original. This avoids unnecessary searches when the mandate needs to be homologated.
Homologating a Protection Mandate
To make the mandate effective, the mandataire must have the protection mandate homologated once incapacity is proven.
- Medical and Psychosocial Evaluations: A doctor and a social worker must confirm the incapacity.
- Retrieving the Most Recent Mandate via the Mandate Registers (Notaries and Bar Association): The most recent version of the mandate must be located in the respective registers.
- Filing the Homologation Request at the Courthouse: This includes the mandate, reports, a witness declaration, search certificates, birth certificate, and identification.
- Notifying Concerned Parties: The Public Curator, the mandant’s close relatives, the substitute mandataire, and any parties entitled to receive reports must be notified between 10 and 60 days before the presentation.
- Examination by the Court: The court will verify the incapacity, the validity of the mandate, the absence of any conflicts of interest and the compliance with the mandant’s wishes.
- Decision: The judge or special clerk will either homologate or refuse the mandate or may add a guardianship if necessary.
Modifying a Protection Mandate
You can modify the mandate as long as you are still capable, following the same procedures: in front of witnesses or through a notarial act. Be sure to destroy previous versions and inform the mandataires and your family about the existence of the current mandate.
It is recommended to review the mandate every 2 to 5 years or after a significant life change (divorce, birth, property purchase, or death of the initial mandataire).
Recently, the law requires that the mandants designate a recipient for reports and that the mandataire provides an inventory of assets within 60 days after homologation.
Seeking Expert Help for Creating a Protection Mandate
Creating a protection mandate gives you peace of mind knowing that your wishes will be respected and your interests safeguarded in case of incapacity. The process includes several rigorous steps: drafting in front of witnesses or a notary, judicial homologation, and the possibility of modification. A poorly drafted mandate can be contested or ineffective.
Contact Medlégal for personalized legal assistance in drafting, homologating, or modifying your mandate. Our expertise in personal law and protection mandates ensures that your document is reliable, secure, and compliant with legal requirements.
Legal sources:
- https://www.quebec.ca/en/justice-and-civil-status/legal-protection/protection-mandate/drawing-up-your-protection-mandate
- https://educaloi.qc.ca/en/capsules/protection-mandates-naming-someone-to-act-for-you/
- https://www.cnq.org/en/your-notarial-services/protection-of-persons/the-protection-mandate/#faq-8863
- https://educaloi.qc.ca/en/capsules/how-to-make-a-protection-mandate/
