Mandate in case of incapacity, protection mandate, homologation… How do you navigate all these technical terms? In fact, they share a common theme: planning for the future in the event that you are no longer able to act for yourself.
Multiple situations may result in you no longer being capable of managing your person and property, for example, an accident, or medical reasons often associated with advancing age.
The protection mandate, formerly called mandate in case of incapacity, is therefore a tool you can use to ensure you plan who will take over your affairs and, most importantly, to structure this management according to specific terms. Specifically, it is possible to provide for, among other things, the management of your assets, payment of regular expenses, administration of income in general, but also decisions related to your housing, your basic needs, etc.
It is also possible to provide for remuneration for the persons who will be responsible for this management. This is often the case when the person must administer a significant investment portfolio or numerous assets. This person or persons who may act on your behalf are called mandataries. The responsibility may indeed be joint and, above all, it is voluntary. Thus, should a person refuse this role or become incapacitated themselves, the protection mandate may provide for one or more substitutes.
This tool therefore aims to prevent any misconduct by third parties who might be tempted to take advantage of a vulnerable person who no longer has the capacity to make informed decisions. A mandatary will be appointed to be the guardian of your best interests and your wishes should you become incapable of doing so.
Unfortunately, with the aging population, cases of elder abuse are increasing, including financial abuse. It is alarming to note that in Canada, 4 to 7% of elderly persons living at home are dealing with at least one type of abuse inflicted by their loved ones[1]. In this regard, the protection mandate also allows for the implementation of oversight measures for the mandatary’s actions, who is most often a family member, for example, by establishing a recurring obligation to provide an accounting of the management, or by requiring the agreement of more than one person on certain actions of substantial importance to you.
The protection mandate may be executed before a notary or before two (2) witnesses; in all cases, you must be capable at the time of drafting and signing it. It will also be the role of the notary and witnesses to ensure that your consent is informed and that you are capable of making these important decisions when signing the mandate.
Furthermore, in order to maintain the neutrality of the witnesses’ role, they may not appear in the document whether as mandatary, substitute, or persons to receive the accounting[2].
While it is advisable to draft a protection mandate as early as possible, it is also essential to review it should your situation evolve over time so that it reflects your current wishes.
Then, should you actually become incapacitated, an additional safety net has been provided, namely the homologation process for the protection mandate. Indeed, your mandatary will have to submit the necessary documentation to the Court, in particular, a medical report and a psychosocial report so that it may ensure that you are incapacitated and that the use of your mandate is the appropriate solution to address this decline in your capacity.
Before obtaining the final judgment, the protection mandate is in a state of dormancy, and only the Court, upon receipt and analysis of the necessary documentation, may activate it. We are able to accompany and advise you in this process.
[1] GOVERNMENT OF QUEBEC, Government Action Plan to Counter Elder Abuse 2010-2015, p. 23.
[2] Art. 2167, para. 2 Civil Code of Québec, chapter CCQ-1991.
