As legal professionals in family law, notaries can be precious allies. They will analyze your situation and advise you on how to protect your interests and those of your family in the event that you become incapable.
By making a protection mandate, you can choose in advance who will manage your property and who will help with your personal decisions in case of incapacity.
Previously known as the “mandate given in anticipation of incapacity,” a protection mandate is a document that allows you to determine the management and/or protection of your property in advance in case you are ever declared incapable. It also covers decisions about personal protection, such as medical care, accommodation and spiritual guidance.
Why draft a protection mandate?
Having your own protection mandate prevents other judicial protection measures, which are rather standard and much less personal, from applying to you in the event of incapacity. Unlike these, the protection mandate allows each person to choose who will manage their assets and how, and help with personal decisions in the event of incapacity.
But there are other good reasons to have a protection mandate:
- Minimizing the Public Curator’s involvement
- Making decisions in advance:
- On the types of investments allowed to the mandatary
- On accommodation
- On the sale of property
- On spiritual guidance
To be valid, the protection mandate can be made before a notary or two witnesses.
The notarized protection mandate ensures you have a customized solution that takes into account your property, family and social situation.
A notarized protection mandate ensures that your wishes will be known and taken into account. This document is reliable and secure for the following reasons, among others:
- The notary checks whether you appear to be of sound mind and fully capable of giving your instructions regarding possible protection. The notary then draws up an authentic act. This makes your mandate more difficult to challenge than if you had written it alone or with the help of someone else.
- The notary must verify your identity and prepare a mandate that complies with the law and your wishes. They must also explain its contents to you and certify that you have understood and signed it freely.
- All notaries must transmit certain information to the Registrar on the mandates they keep. This register is intended to record the existence of notarized mandates in Quebec and therefore does not contain copies of the mandates.
- Your notarized mandate will always be protected since your notary must keep the original in a safe place, as required by law. You can therefore rest assured that this document will not be lost, altered or destroyed. Your notary will give you a certified copy of the original. It is therefore possible to check whether you had a notarial mandate by submitting a search request to the Register of Protection Mandates of the Chambre des notaires. As long as the mandator is capable, only the mandator can request a search at the registers. Otherwise, it is the person who wants to homologate the mandate (and who has an interest in doing so) who can make this request (this is part of the operations of the notary when he is mandated to homologate a mandate.
- Anyone who has an interest in protecting you can easily check whether you have a notarized mandate by submitting a search request to the Register of Protection Mandates of the Chambre des notaires.
- Your notary will inform you of the various elements that can be included in your mandate and will advise you according to your situation, taking into account, for example, the presence of young children, a sick or disabled spouse or certain property located abroad.
- Your notary will also answer your questions, explain the consequences of your choices and clearly state your wishes in writing.
If your protection mandate is not notarized:
- It may be missing certain information that could affect its validity and lead you into protective supervision that could have been avoided.
- It may contain provisions that are illegible, incomprehensible or incompatible with the law.
- Or it could be incomplete.
- It could be lost, altered or destroyed.
- It will have to be verified and validated by a court. This procedure also exists for a notarized protection mandate, but the steps can be more complex in the case of a mandate that is not notarized since it is necessary to trace its original version and summon a witness who was present at the time of signing.
A relative can be appointed as a mandatary, but it is not required.
It is often relatives (child, spouse, brother, sister, etc.) who are appointed as mandatary. If this is not possible, a professional may act as mandatary, as it is not necessary that the mandatary be related to the mandator. If the situation requires it, an institution may be appointed mandatary, but only to manage your property, such as a trust company. Your notary will be in the best position to guide you and help you choose the mandatary.
One or more mandataries for property may be appointed to manage your estate. Usually only one person may be appointed as the person’s mandatary but more than one person could be appointed. The mandator may also choose one or more secondary mandataries.
The mandatary’s duties and liability
The mandatary has a duty to represent the mandator, to defend their interests and to involve them in decisions that affect them as far as possible. In cases of gross negligence or wilful misconduct, for example if they used the mandator’s property for purposes other than their welfare, the mandatary may be held liable. If the mandator’s family and/or the auditor have doubts about the mandatary’s administration of the property or if they suspect that the mandatary is not adequately representing the mandator, a report may be made to the Public Curator (https://www.curateur.gouv.qc.ca/cura/en/outils/joindre/signalements.html).
Mandataries will be required to render account of their administration to the person appointed as auditor.
Rendering of accounts It is preferable to include a rendering of accounts clause in the protection mandate. Upon the entry into force of the Act to amend the Civil Code, the Code of Civil Procedure and the Public Curator Act, no later than November 2022, mandataries will be required to render account of their administration to the person appointed to act as auditor. If no auditor is appointed in the protection mandate, then the auditor will be selected by the court. It could be a relative or a professional. If a person cannot be appointed to act, the Public Curator may be appointed to receive the accounts of the mandatary.
Inventory of property As of the entry into force of the Act to amend the Civil Code, the Code of Civil Procedure and the Public Curator Act, the mandatary must, within 60 days of the judgment approving the mandate, make an inventory of the property to be administered and forward a copy to the auditor.
A mandate has no legal effect until it has been homologated (ratified) by the court. Your notary will be able to carry out the procedure and file the record for judgment in court.
Unlike a power of attorney, a protection mandate has no legal effect as long as the mandator is considered capable of making decisions. The entry into effect of the protection mandate also requires the legal procedure of homologation (ratification).
To homologate a protection mandate, the court must rule on the mandator’s incapacity using medical and psychosocial assessments. If the homologation of the mandate is not contested, your notary will be able to carry out the procedure and file the record for judgment in court.
In the event of a contestation to the homologation by the mandator or by relatives, your notary will not be able to take charge of the procedure. If in doubt, you can consult your notary to determine whether there is a real contestation and to refer you to the professionals who could help you.
Legal proceedings would have to be initiated to institute a tutorship. You can make this application to the court yourself or through an accredited legal professional, i.e. a notary or a lawyer.
Note that it is not possible to make a protection mandate for someone other than oneself.
Make sure that a rendering of accounts clause is included in your protective mandate to prevent the court from appointing an auditor that you have not chosen.
Rest assured, your protection mandate will still be valid. However, if a rendering of accounts clause is not included, the court, when it renders its homologation judgment on the mandate, will appoint an auditor to whom the mandatary will have to render accounts annually. The mandatary will also be required to make an inventory within 60 days of the judgment homologating the mandate, even if the protection mandate provides for an exemption on this subject.
It is best to ask a notary to review your current protection mandate and determine if it needs to be updated.
If the procedure is carried out by an accredited notary and is not contested, it will take about six months. The legal professional responsible for carrying out the procedure must abide by certain time limits for service and notification. At the end of the process, the file is submitted to the court office for judgment.