When a loved one is mentally incapable of making important decisions alone, they may need to be assigned to a tutor or guardian to take on this responsibility. Although this is often a difficult step, it is necessary in order to protect them and assert their rights.
These two options are similar yet differ on a certain number of points. It is important to know what these differences are before deciding on what path to go down.
To find out more, MedLégal’s specialized lawyers explain how to put a person under tutorship and curatorship in Canada.
Tutorship in Canada
Want to know how to apply for a tutorship in Canada? Find out everything you need to know!
What is a tutorship?
As with curatorship, tutorship is a protection mandate. It can be requested for an adult who is deemed incapable of exercising their rights and managing their affairs. When an individual is deemed as “incompetent“, tutorship may then be required. Tutorship is however not to be confused with disability insurance.
A tutorship can be sought for a temporary incapacity (e.g. due to a serious hospitalization) or a partial incapacity (e.g. aslight mental deficiency, leaving the person with some autonomy).
How long does tutorship last?
A tutorship ends when the individual is once again fully autonomous and capable of asserting their rights and managing their belongings. This can occur if they receive a positive report from a health care institution or social services. The individual’s tutorship could also end if the judge perceives that they are once again competent in court. Finally, as with a curatorship, a tutorship may also end upon the death of the individual.
What is a tutor?
The tutor is the legal representative of the person under tutorship. Appointed by the court, they must ensure the proper management of the individual and their belongings. They must act in the individual’s best interests and guarantee his or her protection.
More specifically, the tutor must ensure the physical and psychological well-being of the person under tutorship. When the individual wants to use their health rights, they must notify their tutor. All decisions made must take into account the individual’s condition, needs and circumstances.
With more autonomy than a person under curatorship, the individual may have control over certain decisions and actions. It is up to the court to decide what these rights are.
Who can be a tutor?
Any member of the individual’s family may be appointed as guardian. This means that a parent, spouse or friend of the individual may be appointed.
If no one is willing to become a tutor for the represented adult, then the court will appoint a Public Curator (this is called a “public” tutorship as opposed to a “private” tutorship where a relative is appointed as tutor).
Note: The guardian must be an adult and emancipated person.
What does a tutor do?
The tutor must protect the individual and manage the administration of his or her possessions. Each year, he or she must report to The Public Curator about how their management is going. The Public Curator will check if the person’s interests are being respected and if the tutor is acting responsibly.
The tutor is also responsible for monitoring when the individual under tutorship is once again able to care for him or herself.
A tutor’s responsibilities include:
- Looking after the individual and placing him/her in a specialized facility if necessary
- Communicating with the individual in confidence
- Asking for the individual’s opinion before making each decision
- Authorizing or refusing medical care assigned to the individual
- Representing the individual in court
- Keeping a list of the possessions to be managed during the first 60 days of the tutorship
- Insure the possessions if their value exceeds $25,000
- Report their management of the individual’s possessions annually and at the end of the tutorship
Every 3 years, a re-evaluation of the individual’s incompetence is conducted by the court to see whether the tutorship should continue or not.
Is the tutor paid?
The individual’s tutor is not paid for carrying out his or her duties, unless the court states otherwise.
For managing the individual’s possessions, the Public Curator may decide on a retainer fee to pay the tutor. The protected individual’s own funds may be used to pay for this.
Can someone have two tutors?
An individual under tutorship may have two tutors: one for the management of their possessions, and another for the management of their well-being and physical health. However, the same person is often appointed to perform both functions.
It is also possible for the individual under tutorship to only have one tutor, someone to manage their possessions, if the court determines that there is no need for someone to look over their health.
What if a tutor is not doing their job properly?
In certain circumstances, the tutor doesn’t carry out their duties properly. When this happens, you should contact the Public Curator to dismiss them. A dismissal of tutor can be requested by a relative, the Public Curator, the tutorship council or the individual themselves.
First, The Public Curator may ask the tutor to reconsider his or her management of the individual. If the situation does not improve, dismissal may be considered.
If the tutor is removed, The Public Curator takes over the management of the individual under tutorship until a replacement is found.
Curatorship in Canada
Placing a loved one under curatorship is a difficult but sometimes necessary step. When a parent or grandparent no longer has the ability to manage their own affairs, curatorship may be the best option.
What is curatorship?
Curatorship is a protection mandate that can be requested for an adult who is no longer able to manage their own health or property. The person is then considered incapacitated. Curatorship is intended to protect people and help them assert their rights.
Curatorship is meant for those who are completely and permanently incapacitated. The incapacity may be the result of an illness or accident that renders the person unable to take care of themselves or manage their property.
For those who are only partially or temporarily incapacitated, tutorship is more appropriate because it leaves them with a certain amount of autonomy.
Note: Curatorship is a kind of protective supervision, like tutorship and advisers for adults.
Curatorship means that the person has no independence. They must be represented by their curator for all decisions regarding their well-being and property.
When does curatorship end?
Curatorship generally ends upon the death of the protected person.
What is a curator?
A curator is named by the court to act as an incapacitated person’s legal representative. They are responsible for protecting the person under curatorship and managing their property.
The curator acts as the person’s representative in many situations, including borrowing money, paying bills, selling property, health decisions, etc. They must always act in the protected person’s best interest.
Who can become a curator?
Anyone considered close to the incapacitated person can be named their curator, as long as they are an adult or emancipated minor. They can be a family member, friend or spouse. All of these are examples of private curatorship.
If no one close to the person wants the responsibility, the court will appoint a public curator to be their legal representative.
What are a curator’s responsibilities?
As the legal representative of an incapacitated person, a curator has certain responsibilities. They must “ensure the moral and material well-being” of the protected person. They must consider the person’s condition, needs and faculties and act in their best interests.
A curator’s responsibilities include the following:
- Supervising the care and maintenance of the incapacitated person (They may delegate this responsibility to a healthcare facility)
- Asking for the protected person’s opinion, where possible and reasonable to do so
- Maintaining a relationship with the person under curatorship
- Making decisions about the person’s medical care
- Representing the person and asserting their rights in the event of legal proceedings
- Managing the person’s property
- Keeping a record of the actions taken to manage the property
The protected person’s incapacity must be re-evaluated every 5 years.
Note: Incapacity should not be confused with disability.
What reports must the curator submit?
Every year, the curator must submit reports to the tutorship council and public curator. They must justify the actions they have taken on behalf of the person under curatorship. This helps ensure that the protected person’s affairs are being managed honestly and in their best interests.
They must also submit a report on the person’s affairs and property at the end of the curatorship.
Do curators receive a salary?
Curators are not paid to perform their duties unless the court decides otherwise.
That being said, a public curator responsible for protecting the person and managing their property is paid a fee that usually comes from the person’s money or property.
Can a person have more than one curator?
Two or more curators can be appointed to protect an incapacitated person. Generally, one will manage their property while the other looks after their health and well-being. The latter is called a curator to the person. While multiple curators can look after someone’s property, there can only be one curator to the person.
That means that a protected person can have both a private curator and a public curator. In such cases, the public curator must inform the private curator(s) of their rights and responsibilities.
A Public Curator usually has more limited powers than a private curator. They must obtain authorization from the court in certain situations.
What to do if a curator is not performing their role properly?
In the event that a curator is not performing their role properly or at all, a request can be made to dismiss them from their position. If a public curator was appointed, they can be asked to intervene. The request to dismiss the curator can be made by a loved one, the tutorship council or the person under curatorship.
In such cases, the court will assess the request for dismissal. The court may begin by asking the curator to adjust the way they are managing the protected person before proceeding with dismissal.
If the curator is dismissed, the public curator will take responsibility for the incapacitated person until such time as another curator can be named.
What’s the difference between tutorship and curatorship?
Tutorship and curatorship are similar protection mandates. However, a tutorship doesn’t completely remove the individual’s autonomy. Additionally, a tutorship is more temporary than a curatorship. In short, a tutorship gives more freedom to the individual since it still allows them to have a certain level of independence.
Tutorship is often compared to the curatorship of a child. The individual has some autonomy but is supervised by a tutor.
MedLégal helps protect your loved ones and assert their rights
Putting someone under tutorship or curatorship is usually undertaken because an individual’s right to make decisions for themselves is compromised due to incapacity. As with any legal representative, the curator has many responsibilities and duties to perform on the individual’s behalf in order to protect their rights.
Upholding the individual’s rights is an essential part of being a tutor. Sometimes this may require the assistance of a human rights lawyer. At Medlégal, we’ll work with you to ensure that your loved one’s rights are fully asserted throughout their tutorship.Contact us now. Our team will be pleased to hear from you and take on your case. We know how important your rights are, which is why we take a human and trust-based approach when defending your rights.