The Mandate in Case of Incapacity

Provided in Anticipation of Your Inability to Ensure Respect for Your Wishes

It Can Happen to Anyone 

No one likes to think of the prospect of losing the ability to decide for themselves. Yet no one is immune to a serious accident or illness that could deprive them of the use of their intellectual faculties. If such a misfortune were to befall you, who would take care of you and your property?

MAIL YOUR RENT, GO SHOPPING, MAKE AN APPOINTMENT WITH YOUR DENTIST...

When you are autonomous, lucid and healthy, you see to your own affairs. It is hard to imagine that one day you could become incapable of performing these routine tasks. And yet...

PROTECTION REGIMES 

The court may, following a motion to that effect, initiate or revise a protection regime.

A notary who has been accredited to act on the matter by his professional order may also be asked to institute or review a protection regime. The notary, after following all the procedures established by law, will draw up a notarial record of operations and conclusions and file an authentic copy with the registry at the competent court. A court judgment will grant or dismiss the conclusions of this report.

The protection regime will determine the nature and extent of the moral and material protection to be afforded to an incapacitated person of full age and designate the person empowered to represent or assist him. Depending on the degree of incapacity of the person of full age, there will be a system of curatorship, guardianship or an advisor to the person of full age. The nature of this plan will be subject to mandatory reassessment in accordance with the provisions of the Act.

Who will be entrusted with the task of representing or assisting you? What type of protection regime will be instituted? Wouldn’t you like to decide this for yourself?

THE MANDATE GIVEN IN ANTICIPATION OF INCAPACITY 

In anticipation of a foreseeable incapacity, we ourselves can now choose the person who will take care of our person and our property.

Indeed, the law allows a sane person, the mandator, to designate in a document called the “mandate in case of incapacity” the person who will look after his welfare and the administration of his property in the event that the person becomes unfit to do so him or herself. This trusted person is called a “mandatary”.

What a relief to know that a reliable and freely chosen person (eg., a spouse, brother, sister, close friend) can legally make important decisions on our behalf!

HOW DOES IT WORK?

In order to be fully effective, the mandate must be as complete and precise as possible, give extended powers to the mandatary and provide for the replacement of the mandatary in the case where, for example, the mandatary needs to resign, becomes unfit to act or dies. If so desired, a person can even choose a mandatary responsible for the welfare of his person and another to take care of his property, when the complexity of the estate justifies it. There are also provisions in the terms of reference to ensure a painless, natural death, to provide for organ donation, and so on.

Ideally, the mandate should be written up before a notary. Indeed, the notarized form allows the mandator to obtain all information and advice concerning the action he intends to take from a legal professional: its usefulness, consequences, the formalities of its entry into force, etc. But the mandate can also be made privately, that is to say signed before two witnesses who have no interest in the act. The witnesses must also be able to ascertain the ability of the mandator to act when he signs the mandate.

However, a notarized mandate provides greater security since it is difficult to challenge. The notary can testify that the signatory understood the meaning and the scope of the mandate and that he signed this document while fully sound of mind. In addition, the principal and the mandatary can obtain as many copies of this mandate as necessary since the notary remains the custodian of the original signed before him.

THE REGISTER OF MANDATES: FOR BETTER PROTECTION 

Quebec notaries have a centralized registration system to ensure that your mandate is easy to find so that you can ensure respect for your wishes. Once your mandate has been signed before the notary, the latter will register it in the Register of Mandates held by the Chambre des notaires.

Similar to the Register of Wills, the Register of Mandates has certain advantages:

• It facilitates the discovery of any notarized mandate
• It makes it possible to identify your most recent notarized mandate
• It eliminates any risk that the mandate will be ignored or lost

WHAT IF YOU CHANGE YOUR MIND?

Over time, situations change. The person you chose as a young adult may not have the same importance to you at middle age. No problem! As long as you are sound of mind, you can always, at any time, revoke a mandate and choose to make another one.

THE EXECUTION OF THE MANDATE 

If you become incapacitated, your mandatary will have to ensure that the mandate is effective. He will need to establish the proof of your incapacity by means of a medical and psychosocial evaluation and to demonstrate that you have validly consented to this mandate.

To do this, your mandatary may choose to go directly to the court and seek a judgment.

In a much simpler manner, your mandatary may choose to present a request to a notary accredited to act on the matter by his professional order to see that such a mandate takes effect. The notary, after following all the procedures established by law, will draw up a notarized record of operations and conclusions and file an authentic copy with the registry of the competent court. A judgment of the court will grant or dismiss the conclusions of this report. It is only after obtaining the judgment confirming the notary’s report that the mandatary will be able to fulfill his role.

The effects of this mandate cease when the court finds that the person having given the mandate has once again become capable of managing their own affairs.

DUTIES OF THE MANDATARY 

Your mandatary has some important responsibilities.

Your mandatary is the person called upon to give consent to the health care you will receive:

• He must accept or refuse the various treatments 
• He must accept or refuse various surgery 
• Etc.

He must also administer your property:

• Make your investments 
• Pay your bills 
• Collect your income 
• File your income tax returns 
• Etc.

He also ensures your physical well-being:

• Buys your clothes 
• Ensures your entertainment 
• Etc. 

The mandatary cannot resign before being replaced by another mandatary (if the mandate provides for the possibility of replacing the resigning mandatary by another person) or before asking for the institution of a protection regime.

The resigning mandatary must report on his or her actions.

FOR WHOM?

New lifestyles, the advent of reconstituted families, prolonged life expectancies, and the remoteness of family members all contribute to the need for appointing a mandatary in anticipation of eventual incapacity.

While it is advantageous for all to avail themselves of this possibility, the following persons have a special interest in doing so:

• Spouses in common-law relationships 
• De facto separated spouses who are not legally divorced 
• Individuals with little or no contact with other family members 
• Business people 
• Etc.

Do not wait: the mandate in anticipation of incapacity will guarantee your peace of mind.

Source : Chambre des notaires du Québec (Translation)