In Québec, there are two types of documents that allow a person to appoint an individual to act on their behalf: a power of attorney and a protection mandate (previously called a “mandate in case of incapacity”).
What is a Power of Attorney?
A Power of Attorney (or “POA”) is a legal document whereby an individual gives a person they trust (the “attorney”) the right to act in their name while the individual continues to have full capacity. The attorney could be anyone from a professional to a friend or even a family member. This authority may be general in nature or limited to specific actions or situations, for a set period of time. For example, if an individual plans to be away for an extended period of time, they may wish to authorize one or several attorneys to pay their rent or mortgage, carry out banking transactions, or renew their insurance policies, etc.
POAs can be established by a verbal or a written contract. Like all contracts, a written POA is preferable for reasons of proof and the clear consent of the person is necessary. No witnesses are required upon signing and the POA document does not need to be registered with a notary, though this can be useful for the issuance of true copies and for its conservation.
A key element of the POA is that it can be revoked at any moment, and an individual must be mentally adept and fully able to exercise their civil rights at all times. In other words, if they becomes incapacitated, the power of attorney will no longer be valid. From that moment on, only a protection mandate is useful though certain specific exceptions apply. However, the POA still applies if the individual is physically disabled but mentally adept and requires the assistance of their attorney to carry out certain transactions.
What is a Protection Mandate?
A protection mandate is a legal document in which an individual (the “mandator”) appoints, in advance, one or several persons (the “mandatary” or “mandataries”) to take care of their personal well-being and to administer their property from the moment that the court declares that they are incapacitated.
A protection mandate contains a mandator’s instructions regarding decisions that must be made about them. It may contain information on the identity, powers and responsibilities of the mandatary that the mandator has selected, the care that they wants to receive, the place they wish to live, and the way that their assets are to be managed.
A mandator is considered legally incapacitated if they are incapable of making decisions or acting for themselves. In Québec, incapacity may be temporary or permanent. Once a person becomes incapacitated, they will not be able to sign a mandate. It is therefore important for citizens to prepare their mandates in advance while they are still capable of exercising their civil rights.
How is a Protection Mandate executed?
Protection mandates can be executed in two ways: by notarial act en minute (notarized mandate) or in the presence of two witnesses.
A notarial act en minute is executed in front of a notary, who gives the document legal authority. The notary must verify the person’s identity and prepare a mandate in accordance with the law and the mandator’s wishes. The notary must also explain the content and certify that the person understood it and willingly signed it. The notary keeps the original copy of the document and registers the notarized mandate in the registry of the Chamber of Notaries of Quebec (Chambre des notaires du Québec). From a litigation standpoint, it is more difficult to challenge a notarized mandate, as a notary has ensured its authenticity and the wishes of the mandator.
Mandate in the presence of witnesses
A protection mandate which is made in the presence of witnesses can be drafted by the mandator, a lawyer or any other person. To be valid, the protection mandate must be signed by two witnesses, who must confirm that the mandator was mentally adept at the time of signing. The witnesses cannot be people who will benefit from the mandate, nor can they be named as mandataries. If the mandate in the presence of witnesses was written by a lawyer, it will be registered in the registry of mandates of the Québec Bar (Barreau du Québec).
Can a Protection Mandate be modified?
A protection mandate can always be modified as long as the mandator is fully able to exercise their civil rights. A mandate drafted by a notary would revoke any previous protection mandates signed by the mandator.
How is a Protection Mandate homologated?
When a person becomes incapacitated, the law requires that the court render a judgment declaring the mandator incapacitated and their protection mandate enforceable, whether it is notarized or made in the presence of two witnesses.
There are several steps required to obtain a judgment homologating the protection mandate and, generally, an accredited notary will ensure that the following steps are performed:
- Firstly the mandatary obtains a medical evaluation from a doctor and a psychosocial evaluation from a social worker validating that the mandator is no longer sound of mind;
2. The mandatary will submit a search request to the Register of Mandate Dispositions of the Chamber of Notaries of Québec (Chambre des notaires du Québec) and the Québec Bar (Barreau du Québec) to confirm that the protection mandate is the most recent;
3. An application for the homologation of the protection mandate will be filed with the Superior Court of the judicial district where the mandator resides; the mandator will be served with the application and the persons required by law will also be notified of the application process;
4. An interview of the incapacitated person will be conducted by the notary or a clerk of the Superior Court to determine the severity of the incapacity; and
5. The notary will prepare operations of their minutes, file them with the Court and notify the mandator and all of the persons required by law.
Once the court has reviewed all this information, the procedure will end with a judgment making the mandate executory. Once the executory judgment is rendered, the mandatary or mandataries will be entitled to use the powers entrusted to them.
What happens when you don’t have a Protection Mandate?
If an individual becomes incapacitated and does not have a protection mandate or has an incomplete one (the “concerned person”), the Québec law provides that the legal mechanism of protective supervision will be required. The opening of protective supervision will ensure that a person or persons are appointed to manage the concerned person’s property and see to their wellbeing. Depending on the concerned person’s degree of incapacity, they will have one of three kinds of protective supervision put in place:
• Curatorship if the person is totally and permanently unable to take care of themselves and manage their property.
• Tutorship if the person is temporarily or partly unable to take care of themselves and manage their property. The person therefore retains certain autonomy.
• Advisor if the person is slightly unable to manage their property.
The advisor’s role is to advise and help the person manage their property.
In a process similar to that of the homologation of a protection mandate, a judgment will be rendered by the court to declare the concerned person incapacitated. The concerned person can challenge a request for protective supervision. The aforementioned judgment will also appoint the curator, tutor or advisor to the person based on the submitted medical and psychosocial assessments, minutes of the interview and minutes of the meeting of relatives, persons connected by marriage or civil union and friends, at which the people present will give their opinions on who should act as advisor, tutor or curator.
Through this process a tutorship council is established and is generally composed of up to three people chosen from among those called to the meeting of relatives, persons connected by marriage or civil union and friends. The role of this tutorship council is to oversee the management and conduct of the tutor or curator.
As of April 2019, a bill was introduced in the National Assembly to amend various provisions on the protection of people. This bill proposes a new assistance measure as well as a major simplification of protective supervision regimes. It also introduces a temporary representation measure, which authorizes an individual to carry out specific acts on behalf of an incapacitated individual. Under the proposed bill, the mandatary will now also have to take an inventory and submit reports, unless the mandator waives this requirement. It is important to note that the bill must go through several steps before it becomes law, and that nothing has changed with respect to the laws governing the Public Curator.
For further information or assistance with incapacity planning, please consult a TEP.