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Nathalie B. Poisson

LL.B., D.D.N.

Practice Leader, Notarial and Estate Law

What will happen if I become incapable and I am no longer able to manage my property or take care of myself? How will I be protected if I am partially incapable?

The Public Curator of Québec estimates that there are at present approximately 160,000 incapable persons in Québec, of whom 124,000 are supported by their family and 36,000 benefit from the legal protection measures provided by current legislation.

Rules and Rights

With the aging of the population, this number will undoubtedly grow over the years, hence the need to review the rules for the protection of vulnerable persons. Bill 18, An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons, was therefore tabled before Québec’s National Assembly on April 10, 2019 and was voted on on October 29, 2019.

It aims to provide simplified assistance and representation measures that are better tailored to the situation of each person, with a view to preserving the autonomy of vulnerable persons and allowing them to continue exercising their civil rights insofar as their condition allows.

At the Financial, we are aware of the importance of these measures and their repercussions on your personal and professional planning, and we will personalize our assistance according to these new measures.

Current Situation

With a protection mandate

Under current legislation, as soon as it is established that a person is incapable, it must be verified whether this person signed, when they were capable, a protection mandate in case of incapacity. If such is the case, this protection mandate must be homologated.

  1. The mandatary may not use the protection mandate before first having carried out certain formalities such as obtaining medical and psychosocial assessments which state, among other things, the nature of the incapacity (partial or total) as well as its duration (temporary or permanent).
  2. The mandatary must then present to the court an application to render the protection mandate executory. It can take several weeks or even months to obtain this homologation judgment.
  3. As soon as a person becomes incapable, all the powers of attorney that this person previously made become void (including bank powers of attorney) and all their property is “frozen,” including joint bank accounts, until the homologation judgment is obtained. This situation can cause some inconvenience for the spouse of the incapable person because they no longer have access to the joint accounts as long as the protection mandate has not been homologated.
  4. The second paragraph of article 2167.1 of the Civil Code of Québec provides, however, that as soon as the mandatary files an application to homologate the mandate, the act under which the mandator has already charged the administration of his property to another person and which was signed prior to the mandator’s incapacity continues to produce its effects during the proceedings. This means that signing a general power of attorney or a special power of attorney, in addition to a protection mandate, can avoid the above-mentioned frozen funds problem.

A power of attorney takes effect as soon as it is signed. You must therefore have complete confidence in the person whom you appoint as your attorney.

Without a protection mandate
  • If you have never signed a protection mandate or if none of the persons designated in your mandate can act, current law provides that, following your incapacity, a meeting of relatives, persons connected by marriage or a civil union, or friends composed of at least five persons must be held so that these persons can give their opinion on who will represent you.
  • If your incapacity is total and permanent, a curator must be appointed.
  • If it is established that your incapacity is partial or temporary, a tutor to a person of full age must be appointed.
  • If you are generally able to care for yourself and manage your property, but you need help to make certain decisions, an advisor to a person of full age must be appointed.
  • In addition, a tutorship council composed of three persons must be formed whose role will be to supervise the conduct of the curator or of the tutor.
  • An application must also be presented to the court, along with medical and psychosocial assessments, for the institution of protective supervision. Considering the requirement that a meeting of relatives, persons connected by marriage or a civil union, or friends be held, this procedure to institute protective supervision takes even longer than the procedure to homologate a protection mandate.
  • In this event, it is not you who will choose your representative, and you will not have the opportunity to express your wishes concerning the protection of your person as you could have done in a protection mandate (end-of-life treatment clauses, for example)

Decisive choices

If you wish to personally choose the person who will represent you in the event of incapacity, give them broader powers than those of simple administration, and clearly establish your wishes concerning your end-of-life care, signing a power of attorney and a protection mandate will be even more important after the coming into force of Bill 18.

You must, however, carefully reflect before appointing your attorney and mandatary, and choose a person you trust who has all the necessary qualities. Above all, you must make sure that this person is willing to accept all the tasks and responsibilities that come with their role.

At your service

Professionals’ Financial has a variety of services for your planning needs in the event of incapacity. We know how important these matters can be for you and we have developed assistance services for all the stages of life and all the circumstances that can affect you or the members of your family at these different stages. The future is unpredictable, but by anticipating situations that could have serious repercussions on your or your family’s quality of life, you can take the necessary steps to preserve your peace of mind. Discuss your concerns with your advisor: he is your direct link to all our expertise and, with the help of our notaries, he will help you put in place the best strategies to protect you and your loved ones.

Nathalie B. Poisson, LL.B., D.D.N.
Practice Leader, Notarial and Estate Law

Proposed Changes

Here are some changes proposed by Family Minister Mathieu Lacombe in Bill 18, An Act to amend the Civil Code, the Code of Civil Procedure, the Public Curator Act and various provisions as regards the protection of persons.

  • The mandatary appointed in a protection mandate will now have to take an inventory of the property of the incapable person within 60 days following the homologation of the mandate.
  • The mandatary will also have to make reports to a person designated in the mandate to receive these reports, unless the mandator expressly waives this requirement.
  • Failing a protection mandate, the advisor to a person of full age will be abolished and replaced by two new streamlined assistance measures:
  1. The assistance measure– A person who, because of a difficulty, wishes to be accompanied when making certain decisions will be able to apply to the Public Curator to have this request for assistance approved and to have the name of the person who will assist them entered in a public register for three years. This assistant will have no power over the property and will not be able to sign any document on behalf of the vulnerable person. They will act as an intermediary in dealings with third parties like banks and government organizations. No medical or psychosocial assessments and no court procedures will be required, and it will be free.
  2. Temporary representation– This measure will enable a person to perform a specific act on behalf of a vulnerable person (for example, sell their house). It is limited to the specific act mentioned in the application. A medical assessment and legal procedures will be required.
  • Curatorship and advisor to a person of full age will be abolished and tutorship will be the only protection regime for an incapable person in Québec.
    1. All persons of full age currently under the curatorship regime will now be under the tutorship regime.
    2. The court will have to take into account the capacities of the incapable person in order to allow them the possibility of performing certain acts alone.
    3. As is currently the case, the tutor will have only simple administration powers. The tutor will then have to act with a view to conserving and maintaining the value of the property and will be able to make only investments presumed sound.
    4. The tutor may not dispose of the property of the incapable person without having obtained the authorizations prescribed by law: that of the tutorship council to renounce a succession, for example, and that of the court to sell or hypothecate an immovable, for example.
    5. Medical and psychosocial assessments as well as a court procedure will be required

     

Decisive choices

If you wish to personally choose the person who will represent you in the event of incapacity, give them broader powers than those of simple administration, and clearly establish your wishes concerning your end-of-life care, signing a power of attorney and a protection mandate will be even more important after the coming into force of Bill 18.

You must, however, carefully reflect before appointing your attorney and mandatary, and choose a person you trust who has all the necessary qualities. Above all, you must make sure that this person is willing to accept all the tasks and responsibilities that come with their role.

At your service

Professionals’ Financial has a variety of services for your planning needs in the event of incapacity. We know how important these matters can be for you and we have developed assistance services for all the stages of life and all the circumstances that can affect you or the members of your family at these different stages. The future is unpredictable, but by anticipating situations that could have serious repercussions on your or your family’s quality of life, you can take the necessary steps to preserve your peace of mind. Discuss your concerns with your advisor: he is your direct link to all our expertise and, with the help of our notaries, he will help you put in place the best strategies to protect you and your loved ones.

Nathalie B. Poisson, LL.B., D.D.N.
Practice Leader, Notarial and Estate Law

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