Protecting vulnerable persons: Coming into force of Bill 11

Scope of the protection mandate

Once it was established that a person was incapable,^[1] it was necessary to check whether this person had signed a protection mandate when they were capable. If they had, the protection mandate would have to be homologated by the court. In fact, a protection mandate could not be used by the mandatary without having first complied with certain legal formalities. It took several weeks or even months before this homologation judgment could be obtained.

Note that as soon as a person became incapable, all the powers of attorney that this person had given became null and void (including bank powers of attorney) and all the property of this incapable person was “frozen” until the homologation judgment was obtained. Even joint bank accounts were frozen.

No protection mandate?

Following an incapacity, if you had never signed a protection mandate or if none of the persons designated in your mandate could act, current law provided that you had to call a meeting of relatives, persons connected by marriage or a civil union, or friends, made up of at least five persons, who would meet to give their opinion on the person who would represent you. If your incapacity was total and permanent, a curator had to be appointed. If it was established that your incapacity was partial or temporary, a tutor to a person of full age would be appointed. If you were generally able to take care of yourself and manage your property, but you needed help making certain decisions, an advisor to a person of full age would be appointed. In addition, a tutorship council composed of three persons had to be formed whose role would be to supervise the conduct of the curator or tutor. An application also had to be made to the court and had to be accompanied by medical and psychosocial assessments in order to request the institution of protective supervision.

Given that it was the meeting of relatives, persons connected by marriage or a civil union, or friends that would determine who your representative would be, you were not able to make this choice and to express your wishes regarding the protection of your person, as you could do in a protection mandate (end-of-life treatment clauses, for example).

[1] To establish proof of incapacity, a medical assessment as well as a psychosocial assessment of the incapable person must be produced (article 315 of the Code of Civil Procedure).

• The mandatary named in a protection mandate is henceforth required to draw up an inventory of the property of the incapable person within 60 days of the homologation of the mandate. This way, it will be easier to know what the incapable person owned at the time the mandatary takes office. Upon the death of the incapable person, the mandatary must explain any difference between the value of the assets on the day they took office and on the day of the death of the incapable person.
• The mandatary also has to render an account to a person designated in the mandate to receive such accounts at least every three years. If the protection mandate was signed after November 1, 2022, the mandator will not have the right to waive this rendering of account by their mandatary.
• In the absence of a protection mandate, protective supervision in the form of advisorship to a person of full age is abolished and replaced by two new simplified assistance measures:
  • Assistance measure – If one day you are less independent and want assistance in making certain decisions, you can submit a request to the Public Curator to approve this request for assistance and to register the name of the assistant in a public register for a period of three years. This assistant will have no power over your assets and they will not be able to sign any document on your behalf. This assistant will act as an intermediary with third parties such as banks and government agencies. No medical or psychosocial assessment will be required, nor any court proceedings, and it will be free. This request for the appointment of an assistant may also be made before a notary or an accredited lawyer for a fee. You will be able to designate up to two assistants who will not have to act jointly unless you want them to. This assistance measure will not take away any power from you and you can continue to act alone if you wish. Unlike a power of attorney, the assistant cannot sign any document for the assisted person. The assistant is only a spokesperson who can act as an intermediary to collect or transmit information for the assisted person.
  • Temporary representation – This measure allows an incapable person to have a specific act performed on their behalf by a representative who will be designated by the court (for example, to renounce a succession). This measure is limited to the specific act mentioned in the request. A medical assessment and legal steps will be required for this designation.
• If you become incapable and have no protection mandate, tutorship protection for a person of full age will be instituted for you. Protective supervision in the form of curatorship and advisorship to a person of full age is abolished, and tutorship is the only form of protective supervision for an incapable person in Quebec. All incapable adults under curatorship are now under tutorship. The court has to take into account the capacities of the incapable person in order to give them the opportunity to perform certain acts alone. As was previously the case, the tutor only has powers of simple administration. The tutor must then act with the aim of conserving and maintaining the value of the property, and they can only make investments presumed sound.^[2]

The tutor cannot dispose of the property of the incapable person without having obtained the authorizations prescribed by law. The authorization of the tutorship council to renounce a succession, for example, and the authorization of the court to sell or mortgage a building, for example. Medical and psychosocial assessments as well as court proceedings are required.

[2] Investments presumed sound (articles 1339 and 1341 C.C.Q).

If a minor receives a sum of money or property as an inheritance or by gift, or if they accumulate significant assets from their work, the Public Curator continues to provide the following supervision:

• If it is the parents of the minor who administer the sums, they are called “legal tutors.” These legal tutors must make an inventory, render an account of their annual management to the Public Curator, provide security and set up a tutorship council which will supervise their administration only if the value of the property to be administered belonging to their minor child exceeds $25,000.
• If it is a person other than the parents of the minor child, it is called a “dative tutor.” The dative tutor is bound by the obligations mentioned above, regardless of the amount to be administered, but if the value is greater than $25,000, the dative tutor must also provide security.

Since November 1, 2022, this supervision threshold, previously more than $25,000, has been increased to $40,000, for both legal tutors and the dative tutor.

[3] A minor is a person under the age of 18 years.