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Mandate Given in Anticipation of Incapacity

It can happen to anyone

The prospect of losing the ability to decide for oneself is not a pleasant one. Yet, none of us can be sure of being spared a serious accident or disease which might deprive us of our mental faculties.

If such an unfortunate event occurred, who would look after you and your property or assets ?

It is difficult for independent, lucid and healthy people to imagine that one day they might be incapable of such routine tasks as making out a rent cheque, doing their shopping or making a dentist's appointment.

In general, the court decides who is to look after the psychological and physical well-being of an incapacitated person. Usually, after some discussion, a tutorship council, that is, a group made up of relatives and sometimes friends, recommends that a particular person be appointed. The court is not, however, obliged to follow this recommendation.

The court also determines the appropriate degree of protection depending on the needs of the person in question: adviser to a person of full age, tutor to a person of full age, or curator.

Do you know whom the court would appoint to assist or represent you? Wouldn't you rather decide for yourself?

Fortunately, people nowadays may themselves determine who will take care of them and their property, should they become incapacitated.

The law allows any person of sound mind, the mandator, to appoint, in a document called the mandate, the person who will ensure his or her well-being and the administration of his or her property or assets in case of incapacity. The person entrusted with this task is known as the mandatary.

It is a great relief to know that a trustworthy, freely chosen person such as one's own spouse, brother, sister or close friend, will then be legally empowered to make vital decisions ?

To be truly effective, the mandate must be as complete and unambiguous as possible, give wide-ranging power to the mandatary and provide for the latter's replacement. If you wish, you may even choose two different persons, one to ensure your well-being and the other to take care of your property. The mandate may even include certain "living will" provisions as well as others to ensure the gift of bodily organs, etc..

The mandate should be drawn up before a notary. This enables the mandator to obtain complete information and advice from a legal authority concerning the usefulness and consequences of a mandate, when and how it comes into force, etc. The mandate may also take the form of a simple contract, signed before two disinterested witnesses.

However, a notarial mandate provides greater security because it is difficult to contest. The notary also ensures that the person who signs the mandate has understood its scope and significance and that at the time of signing, when he or she is in full command of his or her faculties. Mandators and mandataries may obtain as many copies as they need since the original is kept for safekeeping by the notary who witnessed the signing.

Quebec notaries have access to a centralized registration system to ensure that all mandates may be easily traced. Once you have signed your mandate before a notary, he or she will see that it is entered in the Register of Mandates kept by the Chambre des notaires. Designed and created on the model of the Register of Wills to ensure respect for your wishes, this system offers the advantages of locating any notarial mandate; identifying your last notarial mandate; eliminating the risk of a mandate being disregarded or traced belatedly, in the event of incapacity. In time, situations change. The person chosen while the mandator was a young adult may not be considered suitable in later years. It is comforting to know that a mandate may be revoked and a new mandatary selected at any time. If you become incapacitated, your mandatary must apply to the court for the mandate to become effective. This application consists in presenting the court with evidence of your incapacity by means of a medical, psychological and social assessment, and establishing that your consent to the mandate is valid. As soon as the mandate has been homologated by the court, the mandatary becomes your legal protector and representative. The mandatary takes on very important duties and responsibilities, which may include giving or withholding consent to health-care procedures and medical treatment. He or she may: accept or refuse the administration of a particular treatment; accept or refuse surgery; . etc. He or she will also administer your property, which means: looking after your investments; paying your bills; collecting your income; filling out your tax returns; . etc. He or she must also look after your physical comfort, by: buying your clothes; seeing to your recreational activities; . etc. The mandatary may not resign until a satisfactory replacement has been found and he must also render an account of his administration if the mandate so stipulates.

New lifestyles, the emergence of reconstituted families, longer life expectancy, and the estrangement of family members are some of the arguments in favour of making the choice of a mandatary before entering your senior years. Although the opportunity presents advantages for everyone, those who stand to benefit the most are: common-law spouses; couples separated but not legally divorced; people who have little or no contact with other members of their families; people engaged in business; . etc.

Do not delay: the mandate is your guarantee of peace of mind.