Protection of vulnerable persons:

Under current legislation, as soon as it is established that a person isincapable, 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.

• 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)