What is a mandate in case of incapacity?
In case of misfortune, who will manage our property? Who will take care of us? Of our children? “The incapacity mandate allows us to choose a trusted person who can make decisions for us,” says Me Pierre Desrochers, legal advisor to the Curator public. It is a written document in which a person of sound mind (the principal) appoints one or more persons (agents) to take care of him or administer his property in the event that an accident or illness prevents him from doing it.”
This document may contain several pieces of information. “Thus, we recommend appointing a replacement in case the chosen agent can no longer or no longer wants to play this role, specifies the lawyer. Other clauses may be added. We can provide a tutor for our children, or even express our end-of-life wishes, for example, our desire to avoid aggressive therapy. It is also possible to include accountability mechanisms to prevent abuse or mismanagement of our assets.” As our situation will evolve over the years, it is better to regularly review its mandate; he will thus continue to protect us adequately. Note: This document should not be confused with the will, which will come into force after our death.
How do we do?
The first step to take is to ask the person you want to act as a proxy if he or she agrees to perform this function. If you have few assets, you can very well write a short text yourself, sign it and have it signed by two witnesses who are not concerned by the content of the mandate. These must simply certify that one was of sound mind at the time when one drafted the mandate. To ensure that things are done according to the rules of the art, you can also use the form prepared by the Curator public du Québec ., available free of charge in the “Forms” section of the website. Attention: do not use the forms offered by other Canadian provinces, because they could contravene the Civil Code of Quebec.
To draft this document, you can also consult a notary. The latter will keep the original copy of the document and register it in the register of the Chambre des notaries du Québec. Another option: we entrust the task to a lawyer; the mandate will then be entered in the register of the Barreau du Québec. In both cases, a fee of approximately $300 must be expected, depending on the complexity of the task. Finally, it is strongly advised to entrust the agent with a copy of the mandate and to indicate to him where the original is. We must also notify our relatives of the existence of such a document and inform them of the name of our mandatary.
In the event of incapacity
Before being declared incapacitated, the person must first undergo a medical and psychosocial evaluation confirming that he is incapable of taking care of himself and his property, temporarily or permanently. In this case, the agent or his representative (notary or lawyer) will request the homologation of the mandate, a procedure that makes it enforceable. You must then go to the courthouse in the judicial district where the mandator lives and meet with a clerk or a judge of the Superior Court so that he can proceed with the homologation. You can also contact a notary. You must have a copy of the mandate and the medical and psychosocial assessment that proves the incapacity. Having this document homologated costs from $1000 to $2000,
Various situations lead to the end of the incapacity mandate, for example, the death of the mandator or mandatary or the opening of protective supervision for the mandator. If you regain your abilities, the procedure for ending the mandate is simple. All you have to do is submit a new medical and psychosocial assessment to the clerk proving that you have regained your fitness. We can then choose to revoke our agent or keep it if we want it to watch over our interests again in the event of a relapse.
If a person becomes incapacitated without a mandate, he can benefit from protective supervision entrusted to one of his relatives or to the Curator public. But, isn’t it better to have provided the right protection mechanisms ourselves?