Many of us don’t know what a protection mandate is, and don’t often think about what would happen if we lost our ability to make decisions. 

We often plan for the most insignificant moments of life: our next family dinner, shopping sprees, a weekend at the cottage, and so on.

Yet, we rarely think of what would happen to our assets and decisions about our well-being if we became disabled as a result of mental health problems, cognitive impairment or personal injuries.

That is where protection mandates come in, an often misunderstood but extremely useful legal tool. In this article, our human rights lawyers explain everything you need to know about protection mandates: what they are, the advantages of having one, who can be a mandatary and what this role involves, and other practical information.

What is a protection mandate? 

A protection mandate is a legal document that allows a person to appoint someone else to make decisions on their behalf should they become incapable of doing so on their own.

Previously known as a Mandate in Case of Incapacity, a protection mandate is an official document that allows a mandator—an adult in full control of their abilities—to choose one or more people to look after them and their property ahead of time in case of temporary or permanent incapacity. This person will be responsible for making sure that their interests and wishes are respected, by following through on decisions related to the mandator’s financial affairs and personal protection, including medical events, housing and spiritual support.

A protection mandate also describes specific responsibilities that the mandator wishes to entrust to the mandatary and the scope of their powers and obligations.

Why draw up a protection mandate?

Drawing up a mandate of protection is a way to reassure yourself in advance of any incapacity resulting from illness, accident or mental disorder. Indeed, none of us is immune to the possibility of suffering an accident or a physical or mental health problem that could lead to us being unable to care for ourselves.

This document allows an individual to specify who will take care of them and their property by communicating their personal wishes and preferences to a designated mandatary. Without a mandate, the court could appoint a guardian from among health professionals, family or close friends. In this case, the individual’s wishes and preferences will not necessarily be clearly outlined or known, and as a result, actions taken may not coincide with what the person would have wanted had they been able to express themselves. With a protection mandate, it is possible avoid standardized legal measures and be assured of more personalized management of your estate and personal affairs in the event of incapacity. 

A protection mandate limits the need for the Public Curator to intervene, and makes it possible to make advance decisions on the various aspects we have already mentioned. It must be drawn up before a notary or two witnesses to be valid.

The advantages of a protection mandate

There are several reasons why it’s a good idea to draw up a protection mandate as soon as you can. A protection mandate allows you, among other things, to:

  • Choose the person or people who will exercise your rights if you are no longer able to do so, in accordance with your wishes
  • Specify the decisions your representative(s) will make on your behalf
  • Specify their responsibilities with regard to the management of your movable and immovable property
  • Define any other wishes you may have regarding various aspects of your estate.

Having a protection mandate validated by a notary will make it more difficult to contest than if you write it alone.

What is included in a protection mandate?

The mandator decides what to include in their protection mandate. Although this varies according to each person’s wishes, the purpose is to define the mandatary’s authority and responsibilities if the mandatory becomes disabled.

A protection mandate covers two broad areas:

Guidelines related to individual well-being:

Your mandatary is responsible for your physical and moral well-being. They make decisions of the following type:

  • Choosing your place of residence according to your preferences 
  • Making sure that your basic needs are met (clothing, food, hygiene, etc.) 
  • Organizing outings and leisure activities
  • Consenting or reusing health care on your behalf, while respecting your autonomy
  • Respecting your preferences regarding end-of-life care and organ donation.

Guidelines related to property and assets:

Your mandatary is responsible for managing your financial and material affairs. This includes:

  • Managing your income
  • Paying your bills
  • Managing your assets and debts
  • Real estate transactions, such as selling your house
  • Potential remuneration
  • Periodic medical assessments 
  • The appointment of a guardian for your children who are minors.

You can also give your mandatary specific instructions regarding the management of your assets, for example by specifying that your assets can be used to support your family, such as paying your children’s school fees.

Who can be a mandatary and how do you choose?

Generally, only one mandatary is appointed under a protection mandate. However, it is also possible to appoint more than one, to divide responsibilities between different people. You can appoint a second mandatary to replace the first if they are no longer able to assume the responsibilities. You can also appoint a person to act as guardian of the mandator’s minor children in the event of disability.

In many cases, the mandator chooses someone close to them to take care of their personal affairs. Often, it’s a spouse, child or family member. In some cases, it can also be a neighbor or friend. 

The chosen individual must be reliable and responsible. The mandatary must also be a legal adult and capable of fulfilling their obligations at the time the mandate is created. Keep in mind that it is also possible to appoint a professional, such as a health lawyer, to carry out your wishes.

What are the roles and obligations of the mandatary?

Your mandatary is required to make all decisions on your behalf, while respecting your rights and protecting your autonomy with respect to your defined wishes and preferences. To be certain that they are acting in your best interests, your mandatary must follow certain steps throughout their mandate:

  • They must draw up an inventory of your assets within 60 days of the date when the mandate was homologated (made official).
  • They must render accounts at regular intervals, either according to the terms of your mandate or at least every 3 years, to someone your trust, known as “rendering account”.

These obligations are established by law. If your mandate of protection does not include specific requirements, details may differ, depending on when the mandate of protection is prepared and homologated.

If your mandatary does not respect the commitments of your mandate, a concerned person can ask the court to terminate your protection mandate and apply for guardianship. In some cases, a replacement mandatary may also ask the court to take the place of the original mandatary.

2 types of protection mandates

The Civil Code of Quebec provides for 2 forms of protective mandate:

1. Notarized protection mandate

This document is drawn up with the assistance of a notary, who guarantees that the mandate is legally valid and complies with current legislation. A notarized protection mandate generally offers greater legal security and wider recognition, as it is registered with the Registres des mandats de protection de la Chambre des notaires du Québec. Its authenticity makes it more difficult to challenge in court. It can also include more detailed and specific clauses, depending on the needs and wishes of the mandator.

2. Mandate in front of witnesses

A witnessed mandate can be drawn up by a human rights lawyer or directly by the mandator using the form from the Curateur public du Québec. A witnessed mandate requires the signature of the mandator and two witnesses of full age and capacity, who cannot be mandataries, substitute mandataries or the person to whom the mandatary will report. These witnesses must attest that the mandator is mentally and physically capable of expressing their wishes and understanding the contents of the document. It is recommended that the mandator inform the members of their entourage of the existence of the protection mandate. If managing the person’s assets is likely to be a complex task, it is advisable to consult a lawyer.

General protection mandate VS detailed protection mandate

When adding directives to a protective mandate, you have two options:

General protection mandate

This document outlines the actions to be taken with respect to the welfare of the mandator and the handling of their assets. It offers greater flexibility for dealing with unforeseen circumstances since it is a more general document.

Detailed protection mandate

This much more detailed document specifies the mandator’s wishes, point by point. This option leaves less room for the unexpected to the extent that, in some circumstances, a mandatary could be prevented from acting.

When does the protection mandate begin and end?

Two conditions are required for the protection mandate to come into effect:

  1. The incapacity of the mandate must be assessed by medical and psychosocial evaluations.
  2. The mandatary must have the court authorize the execution of the mandate.

The execution, or approval, of the protection mandate is usually enforced by a notary or law firm that offers this legal service.

The mandate may be terminated if the mandator regains their capacities. The court must confirm that the person is once again capable of taking care of themselves and their property. Otherwise, a protection mandate ends upon the death of the mandator or when the mandatary resigns, is removed or dies without a replacement.

Frequently asked questions surrounding protection mandates

What happens if a protection mandate is incomplete? 

A protection mandate can be completed with a tutorship or curatorship. The protection mandate therefore remains in effect, but the mandatary must report to the designated tutor or curator.

What happens if the mandator regains their capacities?

If the mandator regains their capacities, they can have the protection order revoked by a court. The agent must then submit a proof of administration once the mandate is revoked.

What happens if the mandator dies?

The death of the mandator terminates the protection mandate. The mandatary then needs to present a final administration report to the heirs and the Quebec Public Curator must be notified of the death.

What happens if the mandatary dies?

The replacement mentioned in the protection mandate then takes over. If the mandator had not planned for a replacement, a protection plan process will begin and the Quebec Public Curator must be notified of the death.

The protection mandate: prepare for the unexpected with Medlégal

No one is immune to unwanted surprises. Mental or degenerative illnesses, accidents, disabilities, traumas, and age-related impairment pose a threat to all of us.

Protection mandates exist to help us choose who will look after us and our belongings if we are no longer able to do so. To learn more, or to set up a protection mandate, please contact the lawyers at Medlégal.

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