The notary can assist you with implementing the various forms of protective supervision and will help you understand the duties and obligations involved.
When a person has not set up a protection mandate and no longer has the faculties to manage their property and/or make personal decisions, it is imperative that a judicial remedy be initiated to institute protective supervision.
Under the current legislation, there are three forms of protective supervision that vary according to the degree of incapacity found during medical and psychosocial assessments:
Curatorship: A curatorship is initiated when a person is totally and permanently incapable of taking care of themselves and their property.
Tutorship: When incapacity is partial or temporary, a tutorship will be instituted instead.
Advisorship to a person of full age: This is instituted when the person is generally capable of taking care of themselves and their property but needs assistance to carry out certain acts.
When the new Act enters into effect, two new protective supervisions will be created and the curatorship and advisorship to a person of full age will be abolished.
With the coming into force of the Act to amend the Civil Code, the Code of Civil Procedure and the Public Curator Act (Bill 18) by June 2022, the curatorship and advisorship to a person of full age will be abolished. The only protective supervision for incapable persons will henceforth be what is known as a “modulated” tutorship.
Two other representation measures will also be possible:
The legal procedure for instituting tutorship will remain the same, but the medical and psychosocial assessments will be adapted so that the court can determine whether the tutorship should be adapted to preserve the autonomy of the person concerned and allow them to perform certain acts on their own. For example, the person could continue to do banking transactions or sign a lease.
Persons under tutorship can marry and vote in provincial and municipal elections. They can also participate in decisions affecting them, and their legal representative, the tutor, has the obligation to abide by their wishes.
La représentation temporaire
This is intended to preserve the right to personal autonomy and to avoid instituting protective supervision when it is not necessary. Temporary representation allows the court to appoint a person to act on behalf of the incapable person for specific acts, for example, the sale of a house, the renunciation of an insolvent estate, etc.
Instituting protective supervision and appointing a temporary representative must be done before the court. A person can initiate the procedure themselves or have their lawyer or an accredited notary do it for them.
The assistance measure is a voluntary, non-judicial measure that does not limit the ability to perform certain juridical acts. This measure must be presented to and accepted by the Public Curator to be valid. Assistance does not restrict the rights of the person being assisted. They retain their rights to sign juridical acts on their own.
The person who wishes to be assisted may choose one or two assistants. When there are two assistants, they are not required to act jointly, unless the person being assisted so wishes.
The assistant can assist the person for:
Administration of their assets
Exercise of their civil rights
Collection and dissemination of certain information
Making and communicating certain decisions
When the assistant is recognized by the Public Curator, their name and that of the person assisted are entered in the Public Curator’s registers. The application may be made to the Public Curator by the person who wishes to be assisted, jointly with the proposed assistant, without going to court. It may also be transmitted to the Public Curator through an accredited notary.
Since it is entirely voluntary, the assistance measure can be cancelled at any time. The person assisted or the assistant must notify the Public Curator so that they can terminate the recognition of the assistant.
An assistant is not remunerated but is entitled to reimbursement of expenses incurred in the exercise of their duties.
To institute protective supervision, it is mandatory to convene a meeting of parents, allies and friends to decide on it, and to establish a tutorship council.
In order to homologate a protection mandate, a relative may request a meeting of relatives, allies and friends, but it is not mandatory. There is also no need to set up a tutorship council.
With the entry into force of this law, the curatorships will be transformed into tutorships. The legal representative—the curator who has now become a tutor—will retain the same rights and obligations as before, but will no longer have full administration of the property and will henceforth simply be in charge of the administration of the property.
This means that:
The disposal, i.e. the sale or mortgage, of property having a value of more than $40,000 will be subject to court authorization, with the advice of the tutorship council.
The property of the person represented may only be invested in investments that are presumed to be safe.
In addition, the person represented will also have the right to:
Vote in municipal and provincial elections
Make a will
At the time of the person’s reassessment, every five years, the court will have to determine whether the tutorship should be modulated to allow the represented person to perform certain acts alone.
Prior to the entry into force of the Act to amend the Civil Code, the Code of Civil Procedure and the Public Curator Act, it is preferable to establish only a limited power of attorney with rendering of accounts. Your notary will be able to find solutions tailored to your situation.
After the Act to amend the Civil Code, the Code of Civil Procedure and the Public Curator Act enters into force, the assistance measure may be appropriate for persons who do not wish to make a power of attorney, but who wish to be assisted. This measure allows the assistant to represent the assisted person, but without giving access to their property. For example, this will allow the assistant to collect banking information to ensure that there are no suspicious transactions on the assisted person’s accounts. The assistant will also be able to negotiate certain contracts, for example a residential lease, to ensure that the assisted person is not exploited.