Mandate in Case of Incapacity (Protection Mandate)
Because I am specialized in the area of incapacity, you will benefit from my expertise in the personalized drafting of your protection mandate. Here are some examples of topics of discussion for our first interview.
- Will the notarized document include a general power of attorney?
- If one day you are incapable of communicating your wishes, would you prefer to put in place accountability mechanisms for your legal representative?
- Would you like your protection mandate to come into full effect if you are only partially incapacitated?
Each question and each decision require careful consideration. My role is to explain the nuances of every option available to you.
Homologation of a Mandate or Tutorship
A sudden occurrence of dementia due to Alzheimer’s or problems arising from a stroke are some of the most frequent causes that lead to requiring someone’s protection by homologation of a protection mandate and, if no mandate has been signed, by tutorship. Either a doctor or social worker may initially declare that a person can no longer care for himself or herself and look after his or her affairs.
My role as a notary is to put legal protection in place that is appropriate for the incapacitated person in a specific situation.
Whether it be homologating a mandate, commencing a tutorship , or replacing a tutor (legal guardian*), my duty is to act in the interests of the incapacitated persons, ensure their rights and autonomy are respected, and taking into account their wishes and preferences.
Scenario: a married couple where husband and wife are co-owners of a building. They have a child. The husband dies suddenly in a car accident and did not leave a will. At the time of his father’s death, the child is a minor.
Without a will, once the matrimonial rights are addressed, the division of the estate will be dealt with according to the Civil Code of Quebec, meaning one third (1/3) of the estate goes to the wife and two thirds (2/3) to the minor child.
The wife therefore finds herself co-owner of the assets (including the building) with her minor child. The market value of the property being $200,000, the child’s portion is more than $40,000.
By law, the wife is the tutor (legal guardian*) of the minor child. However, when a child receives assets valued at more than $40,000 during his or her minority, a tutorship council, generally made up of three people, must be put in place. In addition, if the wife wants to acquire the child’s portion of the building before the child reaches the age of eighteen, a judicial process is required to receive authorization to proceed. This authorization will be granted providing the restrictive conditions of the law are respected.
In such circumstances, my role as a notary is to put in place the body to oversee the tutorship, the tutorship council, through a judicial procedure. If so desired, I can also provide support in getting the court’s authorization to acquire the minor child’s portion of the building.
* Terminology included for readers unfamiliar with the Quebec legal system.