mandate of incapacity in case votre portée la à justice LES PUBLICATIONS DU QUÉBEC

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1 la à justice votre portée The mandate in case of incapacity allows any full aged person of sound mind to appoint a mandatary who will see to the protection of his person and the administration of his property in the event that illness or an accident deprives him of his faculties. My mandate in case of incapacity This brochure provides a sample mandate in case of incapacity developed by the Public Curator. It contains essential information on the choice of mandatary, the various clauses that could be included in the mandate and its homologation. ISBN Printed in Québec, Canada $ 5.95 LES PUBLICATIONS DU QUÉBEC

2 My mandate in case of incapacity LES PUBLICATIONS DU QUÉBEC 1500 D, rue Jean -Talon Nord, Sainte-Foy (Québec) G1N 2E5 SALES AND DISTRIBUTION P.O. Box 1005, Québec (Québec) G1K 7B5 Telephone: (418) , Toll free, Fax: (418) , Toll free, Internet:

3 Main entry under title: National Library of Canada cataloguing in publication My mandate in case of incapacity (La justice à votre portée) Issued also in French under title: Mon mandat en cas d'inaptitude. ISBN Capacity and disability Quebec (Province). I. Quebec (Province). Curateur public. II. Series: Justice à votre portée. KEQ233.M '3 C Table of contents What is a mandate in case of incapacity? 5 What is the difference between a will, a mandate and a power of attorney? 5 What forms can a mandate take? 6 What is homologation? 7 What to consider when choosing a mandatary? 9 This publication was prepared by Le Curateur public du Québec. What is the role of the Public Curator with regard to mandataries? 9 What happens if you become capable of looking after yourself? 10 This edition was published by Les Publications du Québec 1500 D, rue Jean-Talon Nord Sainte-Foy (Québec) G1N 2E5 Graphic designer Lucie Pouliot, Les Publications du Québec The masculine form is used to indicate either gender, in the interests of simplicity. Moreover, the names and adresses used in the examples are fictitious. What if the mandator dies? 11 What happens if you become incapacitated without having prepared a mandate? 11 Sample mandate 12 Offices of the Public Curator of Québec 13 Legal deposit 2003 Bibliothèque nationale du Québec National Library of Canada ISBN Gouvernement du Québec, 2003 All rights reserved. No part of this publication may be reproduced in any manner whatsoever or translated without the prior permission of Les Publications du Québec. 3

4 SINCE APRIL 15, 1990, THE CIVIL CODE ALLOWS ANY ADULT WHO IS OF SOUND MIND TO PREPARE A MANDATE IN CASE OF INCAPACITY. IF YOU HAVE NOT DRAWN UP A MANDATE BUT ARE CONSIDERING DOING SO, THIS BOOKLET WILL GUIDE YOU THROUGH THE PROCE- DURE. IT EXPLAINS THE MAIN FEATURES OF THE MANDATE AND ALSO CONTAINS A SAMPLE MAN- DATE DESIGNED TO RESPOND TO THE NEEDS OF AS MANY PEOPLE AS POSSIBLE. YOU CAN USE IT IN THE FORM SHOWN OR AS A BASIS FOR YOUR OWN MANDATE, ADAPTING IT TO YOUR OWN SITUATION SO THAT IT RESPONDS TO YOUR NEEDS. BE SURE TO READ THE FOLLOWING INFORMATION FIRST. What is a mandate in case of incapacity? A mandate in case of incapacity is a document drawn up when the author, known as the mandator, in full possession of his faculties, appoints another person, known as the mandatary, to look after him and/or the administration of his property in the event of illness or accident depriving him of his faculties, either temporarily or permanently. The mandator is free to decide on the contents of the mandate. For their protection and physical well-being, mandators can include a living will to cover their end-of-life wishes. In the same way, the clauses dealing with the administration of property can be very general or highly detailed, with a list of specific administrative activities, depending on the individual s situation. Mandators can even appoint more than one mandatary in their mandate. For example, they may appoint one to take care of their person and another to administer their property. They can also designate a substitute mandatary, in case the principal mandatary refuses to have the mandate homologated or for some reason is unable to continue to execute the mandate, or even dies before or during the exercise of his functions. They can also determine a base for compensating the mandatary. What is the difference between a will, a mandate and a power of attorney? A will contains your wishes about what is to be done with your property after your death. A power of attorney or a mandate in case of incapacity can only be used during your lifetime. N.B.: The text of the law prevails over the information in this booklet. A power of attorney authorizes a person to accomplish certain ordinary administrative tasks (pay bills, withdraw money from a bank account) or other more serious administrative activities. A power of attorney, whether or not it is notarized, is limited to the administration of property. If it is not notarized, it can be informally terminated at any time. It is automatically terminated if its author is placed under protective supervision, 4 5

5 whether it be an advisorship to a person of full age, a tutorship or a curatorship, or if the author becomes incapable of supervising the actions of the person to whom he gave power of attorney. The death of the person who has power of attorney also terminates it. The mandate in case of incapacity goes further. It can cover not only the administration of property but also the care of the mandator s person. However, the Court must render the mandate valid by homologation, once it has received evidence that the mandator has become incapable of looking after himself. What forms can a mandate take? The law provides for two forms of mandate in case of incapacity: mandate by notarial deed: a notary prepares the document according to the wishes and requirements of the mandator. This mandate is registered at the Chambre des notaires and can easily be found should the mandator become incapacitated; mandate given in the presence of witnesses: this is signed by the mandator in the presence of two witnesses who have no interest in the document. If the mandator has already signed the mandate, he must acknowledge his signature in the presence of the witnesses. If the mandator is physically unable to sign the document, the law authorizes him to have it signed by a third party according to his instructions. This situation must, of course, be made clear to the witnesses. The document must then be countersigned by the two witnesses who are not the mandataries. Their signature certifies that the mandator was of sound mind when he signed the mandate. The mandator does not have to disclose the contents of his mandate to the witnesses. The law simply requires the mandator to state the nature of the document to be signed (by saying for example This is my mandate in case of incapacity ). We recommend that people who have given a mandate in the presence of witnesses store the original in a safe place, informing the mandatary and giving him a copy. But whether your mandate is notarial or given in the presence of witnesses, it is always advisable to tell your family and those close to you the name of your mandatary. This is a wise precaution because it enables them to act at once should you become incapable of looking after yourself as the result of illness or accident. Whatever form it takes, the mandate in case of incapacity comes into effect only after it has been homologated or approved by the Court, that is, examined by a clerk or judge of the Superior Court in the legal district where the mandator lives or has his residence. What is homologation? Homologation is a legal procedure whereby the Court verifies the incapacity of the mandator, checks to see the existence of the mandate and its validity, if given in the presence of witnesses. Only the mandatary can apply to the Court in the mandator s legal district for homologation of this document. The application must be accompanied by a copy of the mandate, along with medical and psychosocial assessments demonstrating the mandator s incapacity. These assessments are made by health and social services professionals working in a health care establishment (CLSC, hospital, residential and long-term care facility, rehabilitation centre) or in private practice. As shown in the diagram, the final stage of the procedure is the judgment giving the mandate force of law, that is, giving the mandatary the right to exercise the powers invested in him. Homologation of a mandate in case of incapacity is a formal procedure that takes time. The mandatary may use the services of legal counsel (notary or attorney). Parallel to homologation, there is now a process in which the notary takes charge of handling the case of a person who needs protective supervision. The notary still has to have the conclusions of his minutes approved by the clerk or by the Court. Only certain notaries certified by the Chambre des notaires are allowed to proceed with this method. 6 7

6 Homologation of a mandate Regular procedure Mandatary institutes the process Application to Court for homologation Notice of application Interview with person of full age Court hearing Taking into account: validity of mandate medical assessment psychosocial assessment incapacity of person of full age interview with person of full age What to consider when choosing a mandatary? Because of the responsibilities that a mandatary may have to take on, it is important to obtain the person s consent before officially appointing him in the document. You should discuss the powers you wish to give him over your person and property to ensure that you are both on the same wavelength. Your choice of mandatary and substitute mandatary, if you appoint one, is most important; in either case, you should select a person in whom you have full confidence and with whom you have developed close ties. The freedom to choose whomever you want as mandatary is one of the major advantages of the mandate. You may appoint more than one mandatary. The sample mandate provided allows you to indicate the name of one person to protect your person and another to manage your property. Note that a moral person, such as a trust company, can be appointed to administer your property. If your personal or financial situation is complicated, we recommend you consult a notary or attorney about preparing and drafting your mandate. What is the role of the Public Curator with regard to mandataries? Homologation judgment Notice of judgment The Public Curator keeps a register of homologated mandates. The information entered in this register includes the mandator s and mandatary s family and given names and the date and number of the homologation judgment The Public Curator also has the power to intervene in any legal procedure connected with the homologation or revocation of a mandate. For example, he could contest proof of the mandator s incapacity during the homologation process. In the case of a revocation, he could present reasons which he feels justify termination of the mandate in favor of protective supervision. 8 9

7 In addition, the Public Curator has power of inquiry over mandataries. For example, if he is informed that mandataries are negligent or abusive or have failed to respect the terms of the mandate entrusted to them, the Public Curator investigates the situation upon receipt of a complaint. If the complaint is founded, the Public Curator meets with the mandatary to ask him to correct the situation or to make a commitment to do so. If the mandatary persists in being remiss and refuses to remedy the situation, the Public Curator can relieve the mandatary of his duties by applying to the Superior Court for an injunction. In fact, any interested party can institute this procedure. What happens if you become capable of looking after yourself? Needless to say, if you regain your health and faculties, you can deal with the formalities required to terminate the mandate yourself. Your mandatary can also do this, as can any other interested party. The procedure involves sending a notice to the clerk of the court, where appropriate, or can be instituted by applying to the court. Your mandate could also be revoked on the initiative of the director general of a health and social services establishment. The law authorizes him to attest, in a report containing medical and psychosocial assessments, to the fact that you are once again capable of looking after yourself and no longer need to be represented by a mandatary. This report is sent to the clerk of the Court. If it is not contested by the people notified by the clerk of the Court within the 30 days following filing of the report, your mandate will be automatically revoked. The clerk of the Court gives notice in writing of this revocation and gives copies to you, your mandatary and the Public Curator. The mandatary then has to account for his management of the mandator s affairs. What if the mandator dies? The death of the mandator obviously terminates the mandate. If this happens, the mandatary s report is made to the mandator s heirs. If the mandatary dies during the mandate, his heirs have to report on his management on his behalf to the substitute mandatary or, in the absence of such, to the legal representative (tutor or curator) appointed by the Court following the institution of protective supervision. What happens if you become incapacitated without having prepared a mandate? The law has provisions for the protection and representation of persons of full age who become incapacitated without having prepared a mandate in case of incapacity and who need to be protected. Examples of these are domestic and judicial mandates, which apply to spouses. Certain laws, such as An Act respecting the Québec Pension Plan and the Automobile Insurance Act, allow an organization paying a pension or indemnity to designate a person other than the beneficiary to manage the sums paid. There are three types of protective supervision. From the most limited to the most inclusive, they are: advisor to person of full age, tutorship to the person and/or property, and curatorship, which covers both person and property. An advisor to a person of full age is an essentially private type of supervision that can only be conferred to the Public Curator under exceptional circumstances and deals strictly with assisting the administration of property. Tutorships and curatorships can be entrusted to the Public Curator if there is nobody in the person s immediate circle to assume the role of tutor or curator. To sum up, you are under no obligation to prepare a mandate in case of incapacity. You may even prefer not to. You may feel that if something happens to you (if you fall ill or have an accident, for example) and you are partially or totally incapacitated, those close to you will know what to do to protect you adequately

8 Sample mandate We have provided a sample mandate in case of incapacity. You will see that it contains detailed information about the mandator s wishes regarding the protection of his person and general wellbeing. The clauses regarding the administration of property are especially suited to people whose property, whatever its value, is simple to administer. If your personal and financial situation is complicated and requires special treatment, it is preferable to consult a notary or attorney. Before you fill out the various sections of this mandate, be sure you understand everything about it by reading the relevant explanations on page IV. You can change the mandate at any time. Remember, you are the person giving it and it must respond to your needs. Where applicable, the rules of form imposed by the law must be respected. If you change the mandate, the whole process has to be repeated as if you were giving a mandate for the first time. The new mandate must be signed by the mandator (or, on his request, by a third party, as described earlier) in the presence of two witnesses, who must also sign the document attesting the mandator s capacity to act. If a third party has drawn up the mandate on behalf of the mandator and has also signed for him, the witnesses must be formally notified of this. Offices of the Public Curator of Québec Montréal Head Office 600, boulevard René-Lévesque Ouest, 10 e étage Montréal (Québec) H3B 4W9 Telephone: (514) Toll free: Fax: (514) Internet site: Longueuil 201, place Charles-Lemoyne, RC 02 Longueuil (Québec) J4K 2T5 Telephone: (450) Toll free: Fax: (450) Québec 520, boulevard Charest Est, 2 e étage Québec (Québec) G1K 3J3 Telephone: (418) Toll free: Fax: (418) Saguenay 227, rue Racine Est, 1 er étage, bureau 1.08 Chicoutimi (Québec) G7H 7B4 Telephone: (418) Toll free: Fax: (418) Saint-Jérôme 222, rue Saint-Georges, 3 e étage, bureau 315 Saint-Jérôme (Québec) J7Z 4Z9 Telephone: (450) Toll free: Fax: (450) ou Rouyn-Noranda 255, rue Principale, RC 06 Rouyn-Noranda (Québec) J9X 7G9 Telephone: (819) Toll free: Fax: (819)

9 Sherbrooke 200, rue Belvédère Nord, RC 03 Sherbrooke (Québec) J1H 4A9 Telephone: (819) Toll free: Fax: (819) Victoriaville 108, rue Olivier, 1 er étage, bureau 208 Victoriaville (Québec) G6P 6V6 Telephone: (819) Toll free: Fax: (819) Rimouski 92, 2 e Rue Ouest, 1 er étage, bureau 102 Rimouski (Québec) G5L 8B3 Telephone: (418) Toll free: Fax: (418) Trois-Rivières 25, rue des Forges, bureau 410 Trois-Rivières (Québec) G9A 6A7 Telephone: (819) Toll free: Fax: (819) Gatineau 4, rue Taschereau, 3 e étage, bureau 320 Hull (Québec) J8Y 2V5 Telephone: (819) Toll free: Fax: (819) Direction territoriale de Montréal 454, place Jacques-Cartier, bureau 200 Montréal (Québec) H2Y 3B3 Telephone: (514) Toll free: Fax: (514) la à justice votre portée In the same collection Cohabitation Contract My Will Application for the Probate of a Will Upcoming topics in this collection Establishment of Custody and Access Rights and Fixation of Child Support Temporary Measures or Variation of Corollary Relief in a Divorce Case 14

10 Printing at Imprimerie Vitray inc. Québec June 2003

11 I My mandate in case of incapacity Please print in capital letters 1 MANDATARY (See Note 1 on page IV.) With this mandate, I, the undersigned, Name of mandator to act as mandatary with respect to my person. appoint Name of person I also appoint Name of person in the administration of my property. to act as mandatary 2 SUBSTITUTE MANDATARY (See Note 2 on page IV.) If my mandatary is unable to perform his duties for any reason (illness, death, refusal, resignation or revocation of his functions), I appoint substitute mandatary with respect to my person. Name of person to act as I also appoint Name of person in the administration of my property. to act as substitute mandatary 3 REPORT (See Note 3 on page IV.) Once a year, my mandatary must file a report on his activities with regard to my person and the administration of my property with Name and address of person 4 RESPONSIBILITIES OF THE MANDATARY CONCERNING THE PROTECTION OF MY PERSON (See Note 4 on page IV.) 4.1 General information My mandatary is responsible for ensuring my mental and physical well-being and as such is authorized to make decisions and act in a way that responds to my daily needs while respecting my wishes, my personal and religious values, my habits, my standard of living and my degree of autonomy. Whatever my surroundings, my mandatary must make sure that I receive the care and services that my state of health requires. As a general rule, and insofar as circumstances allow, I wish my mandatary to play an active role in my life (regular visits, attention and support, etc.) Initials of mandator and witnesses (continued on back)

12 II 4.2 Accommodation To the extent that this is possible, I wish to remain in my own home. If my health requires that I be accommodated in surroundings suited to my needs, my mandatary will make a decision based on my wishes as expressed below: Complete if applicable 4.3 Consent to care If I am unable to consent to or refuse the care required by my state of health, my mandatary must do so on my behalf. In this respect, he must act solely in my interest and, as far as possible and as provided by law, take into account any wishes I have expressed. If he is required to consent to treatment, he must take all the necessary steps to reach an informed decision, for example, by discussing the matter with the attending physician and nursing team. If he consents to the treatment suggested, it will be because he deems it to be timely and beneficial despite any side effects, and because the risks it represents do not appear to outweigh the expected benefits. 4.4 Last wishes In any decision about treatment required at the end of my life, my mandatary must take into account: my opposition to any disproportionate procedure for diagnosis or treatment that would only increase or prolong my suffering and the agony of death to no avail; my desire to die with dignity, with the required comfort and support and adequate medication to relieve my suffering, even if it indirectly hastens my death; further stipulations or wishes: Complete if applicable 5 RESPONSIBILITIES OF THE MANDATARY CONCERNING THE ADMINISTRATION OF MY PROPERTY (Indicate simple or full before administration. For a clear explanation of the difference between the two, see Note 4 on page IV.) I invest my mandatary with the power to administer my movable and immovable property according to the rules of administration, in compliance with the Civil Code of Québec. I do not wish my movable and immovable property to be sold, except where absolutely necessary: Complete if applicable 6 ACCESS TO RECORDS It is understood that in the exercise of his functions, my mandatary is authorized to consult my medical and social records as well as any other records concerning my person and property that may be necessary, in accordance with the law. 7 MISCELLANEOUS CLAUSES (See Note 5 on page IV.) Upon assuming his functions, my mandatary must prepare an inventory of all my movable and immovable property. This must be done in the presence of the person to whom he has to report regarding his administration. Initials of mandator and witnesses

13 III I wish my mandatary to assume my family responsibilities in the same way as I have assumed them until now. My mandatary may reimburse himself out of my assets for all expenses that are useful or necessary in the discharge of his duties, including expenses incurred for homologation of this mandate. Although a mandatary s duties do not have to be compensated by law, I wish my mandatary to be remunerated in the following manner: Complete if applicable For any decision concerning my person or the administration of my property, if possible, I wish to be consulted so that I can express my opinion. If my mandatary deems it advisable, he will consult with the most significant members of my social network, namely Names of these persons, where applicable However, it is understood that the power of decision rests with my mandatary. This mandate revokes any previous mandate in case of incapacity. After homologation, this mandate will terminate any power of attorney conferred for the administration of my property. If I regain the capacity to look after myself, my mandatary must institute proceedings for the revocation of this mandate. 8 SIGNATURE OF MANDATOR AND DECLARATION BY WITNESSES (See Note 6 on page IV.) Signature of mandator We, the undersigned, Name of witness and Name of witness have both witnessed the signature of Name of mandator and hereby declare that he was fully capable of acting as mandator. We also declare that we personally have no interest in this mandate. In witness whereof we signed this mandate in this, Place Date in the presence of Name of mandator Signature of witness Address and telephone number Signature of witness Address and telephone number Wherever the context requires, the masculine form is used to indicate either gender.

14 IV Explanatory notes My mandate in case of incapacity 1. You can appoint one mandatary for both aspects (protection of your person and administration of your property) or two different mandataries, one for each. Note that a moral person, for example, a trust company, can be appointed as mandatary for the administration of property. 2. See Note The report concerning your protection and the administration of your property could be made to a person close to you or anyone able to assess your mandatary s administration and in a position to take steps to improve it if necessary. The person to whom the mandatary reports regarding his administration must be present during the inventory of the mandator s property (see Note 5), which has to be undertaken by the mandatary when he begins his mandate. Subsequently, he supervises the mandatary s administration and ensures that the mandatary s decisions about the person and the administration of the person s property are in the best interest of the mandator. If he finds that the mandatary is negligent in accomplishing his duties, he can take the necessary measures to correct the situation. N.B.: Although it is optional, this clause is a wise precaution. 4. It is important that you know exactly what powers you are conferring upon your mandatary. When mandataries are entrusted with simple administration, they have limited room to manoeuver. They have to ensure the ordinary management of your affairs and also safeguard and maintain your movable and immovable property. They may not sell it without your consent if you are able to give it. If you are not, they must obtain the consent of the court unless the item is perishable or likely to depreciate in value rapidly. If they make investments in your name, the investments must be presumed sound, in keeping with the definition in the Civil Code of Québec (various types of bonds, investment certificates, etc.). Mandataries who are entrusted with full administration have much greater leeway. In addition to preserving your property, they must if possible make it productive so that its value increases. They can also borrow or take out a mortgage in your name or sell your property without prior authorization. The mandatary s administration is terminated when his mandate is revoked or the mandator dies. Where applicable,the mandatary must report on the whole of his administration to the mandator who has once again become capable, to the heirs of the deceased mandator, or to the mandatary or legal representative (tutor or curator) who replaces him. 5. The inventory is really a picture of the mandator s property at the time when the mandatary assumes his duties. It must include an accurate list of all the property to be administered. N.B.: Although it is optional, this clause is a wise precaution. 6. You, the mandator, may have already signed your mandate or had it signed by a third party in your presence and according to your instructions, but without any witnesses present. In either of these cases, you must acknowledge in the presence of witnesses your signature or that of the third party who signed on your behalf because you were unable to do so. N.B.: The text of the law prevails over the information in this booklet.