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.
What is the purpose of a protection mandate?
The protection mandate, previously known as the Mandate in Case of Incapacity, 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.
Protection mandates also specify the mandatary’s responsibilities and the scope of their powers according to the mandator’s wishes and obligations.
2 types of protection mandates
The Civil Code of Quebec provides for two types of protection mandate:
- Notarized mandate
- Mandate in front of two witnesses
The notarized mandate must be drawn up by a notary. The mandate before a witness can be drafted by a human rights lawyer or directly by the mandator using the Quebec Public Curator form.
What is included in a protection mandate?
The mandator decides what to include in the protection mandate. Although it varies according to each person’s wishes, its purpose is to define the mandatary’s authority and responsibilities if the mandatory becomes disabled.
There are 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.
The implementation of the protection mandate
Two conditions are required for the protection mandate to be effective:
- The incapacity of the mandate must be assessed by medical and psychosocial evaluations
- 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.
What happens if…
The protection mandate is incomplete?
A protection mandate can be completed with a guardianship or curatorship. The protection mandate therefore remains in effect, but the mandatary must report to the designated tutor or curator.
The mandator becomes capable again?
If the mandator becomes capable again, they can have the protection order revoked by a court. The agent must then submit a proof of administration once the mandate is revoked.
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.
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: expect the unexpected
No one is protected from unwanted surprises. Mental or degenerative illnesses, accidents, disabilities, traumas, and age-related impairment are a threat to all of us.
The protection mandate exists to help us choose who will look after us and our belongings if we are no longer able to do so.
