What is the purposeof a protection mandate?

You havethe rightto foresee.

The purpose of a protection mandate is tosafeguard the interests of an incapacitatedperson and his family.

Consult your notary!

A person is considered legally
incapacitated when he is unable to
make decisions or to act on his own
behalf because of his health.

© Chambre des notaires du Québec, 2022 - DEP205- PHOTOS : ISTOCK

www.cnq.org

Implementing
a protection
mandateWhat if someone becomesincapacitated and has
a protection mandate?
You must have the mandate
homologated by the court.

Such a mandate must generally be respected because
it contains the person’s wishes regarding decisions thatmust be made about him. For example:
The identity, powers and responsibilities of themandataries he has selected. The mandataries are
the people who will make decisions in his place.
The care he wants to receive and the place
where he wishes to live.
The way his property, money and debts
are to be managed.
The tutor for his minor children.
The managing of his business, if needed.

The protection mandateis also called a “mandate given
in anticipation of incapacity,”“mandate in case of incapacity,”or “incapacity mandate.”

When doesa protection mandate
become effective?
When a person becomes incapacitated, the law
requires that the courts render a judgment on theprotection mandate, whether it is notarized or not.
The judgment gives effect to the protection mandate
and allows it to be used.
To render judgment, the court will analyze whether:
The mandate is valid, i.e. whether it meets therequirements of the law.
The person should be declared incapacitatedand his degree of incapacity.
The designated mandatary is able to takeon the responsibilities indicated in the mandate.
The courts must deal with issues other thanthose indicated in the mandate so thatthe incapacitated person is properly taken care of.
The mandate is complete.
The mandate must be homologatedin whole or in part.

Only a court may declarea person incapacitated andhomologate his protection mandate.
Homologation consists inofficially confirming the protection
mandate and making it effective
so that it may be used.

How do I obtain
homologation of aprotection mandate?
Your notary will advise you on the administrative andlegal steps needed to obtain a judgment homologating
the protection mandate.

ADMINISTRATIVE PROCEDURESYour notary will make sure the following administrative
procedures are performed:
1. O btain a medical evaluation and psychosocial
evaluation from a medical establishment regarding
the person considered incapacitated.
2. Inform the appropriate people and the membersof the family of the situation.
3. S
 ubmit a search request to the Chambre
des notaires’s and the Barreau du Québec’s
respective register of mandates to check
whether there is a protection mandate.

JUDICIAL PROCEDURESYour notary will draft the application for homologationthat will be submitted to the court.
He will prepare the documents needed in court and willkeep you informed at every phase of the proceedings.
Among other things, he will:Prepare the application to homologate the protection
mandate of the person considered incapacitated.
Obtain the affidavits required for filing theapplication (for example, if the mandate is notnotarized, a witness must attest that the signatureon the mandate is indeed that of the personconsidered incapacitated).

Only a court of law
may declare a person
incapacitated andholomogate hisprotection mandate.

Open a court file.
Inform in writing the people who by law must beadvised of the situation (including the person
considered incapacitated, a member of his immediatefamily, the person appointed as mandatary
and the Curateur public).
Question the incapacitated person in the manner
stipulated by law.
Submit the file to the court.

Who oversees
the madatary?
Up until November 1, 2022, it was possible to stipulate
in a protection mandate that there be no supervisionof the mandatary’s conduct or administration.
The rendering of account and the inventory will become
requirements for mandates signed after that date.
If the mandate is silent on this matter, the court may
make all orders necessary for the completion.

Once the protection mandate is homologated by thecourt, your notary will explain to the mandatary his duties
and responsibilities and will answer all his questions.

¡ The contact information, date of birth, social
insurance number and health insurance numberof the person considered incapacitated.
¡ The documents regarding his civil status(marriage certificate, marriage contract,judgment of divorce, etc.).
¡ The names and contact informationof the mandataries named in the mandate
and of a member of the incapacitatedperson’s immediate family.

The mandatary’s responsibilities are generally indicated in
the protection mandate. The court will sometimes decideto spell out their limits or modify them.

The mandate may designate one or several
mandataries to make all decisions. Mandataries
may need to act jointly on all decisions, or the mandate
may provide, for example:One mandatary may be responsiblefor decisions concerning the incapacitatedperson’s persona! needs.
Another mandatary may be responsible formanaging the property, money and debts.

Information
to collect¡ His birth certificate.

What are the mandatary’sresponsibilities?

The mandatary must therefore act according to thepowers set out in the mandate or defined by the court.
For example, he may have to take decisions regarding:Where the incapacitated person will liveHis safety
His daily needs (food, clothing, hygiene)
Care required because of his healthPaying expenses (electricity, food, housing)Collecting income (old age pension, allowances)
Managing his assets and debts (house, bankaccount, investments)
His rights or his protectionàHOW TOPREPARE?

¡ Any other information requested by your notary.

Foodfor thought
Did youknow?
à The Curateur public may investigate andintervene when a citizen reports an abuse ornon-compliance with the mandate.
à If the person signed a power of attorney
before becoming incapacitated, it remains
valid during the judicial process. However,as soon as the judgement is rendered,
the power of attorney is no longer valid.
à As of November 1, 2022, the court may namethe Curateur public as the person to whom
the mandatary needs to render accounts.
The mandator may also stipulate it in his mandate.

¡ Do you have the most recent medical andpsychosocial evaluations of the person considered
incapacitated?
¡ Have you obtained the search certificatesfrom the Chambre des notaires’s and the Barreau
du Québec’s respective register of mandates?
¡ Do you have a true copy of the protection
mandate or do you have the original if
the mandate is not notarized?
¡ If the protection mandate is not notarized, haveyou located one of the witnesses who signed themandate of the person considered incapacitated?
¡ Any other question raised with your notary.