Protection Mandate Incapacity and Power of Attorney

Do you need legal advice to draft a mandate to protect your family in case of your incapacity and power of attorney?

Protection Mandate Incapacity and Power of Attorney

Protection mandate incapacity – Notary Montreal. A person may prepare a document instructing another person to act on their behalf. This document is called Power of Attorney (and can be used only if the mandator can confirm it) and the Protection Mandate, when the person’s health, body and assets are concerned. We can assist you to prepare the highly important, and often overlooked, power of attorney / protection mandate documents. Making a power of attorney / protection mandate will facilitate the tasks for your loved ones and will ensure that you yourself are provided with all the necessities of life. Given the aging population in the province of Québec, the power of attorney / protection mandate should not be disregarded.

The mandate in case of incapacity is the best form of protection for yourself and your assets in case an incapacity occurs.

What is a protection mandate? The mandate in case of incapacity or protection mandate is a document, executed before a notary or signed in the presence of two witnesses, in which a person, the mandator, appoints the people in charge of taking care of his or her person following an accident or disease and where the mandator no longer has the mental faculte give someone you trust (the mandatary) the power to make decisions on your behalf concerning your assets (your finances) and your personal care (welfare and necessary health care) in the event you are no longer capable of making these decisions yourself. The mandate takes effect only when you have been declared incapable and the mandate has been homologated (certified as valid) in a court of law. A medical and psychological assessment is used as proof of your incapacity.

Who needs a mandate? Some people mistakenly believe that only the elderly need a protection mandate. In fact, young people should have one too because an accident or illness can happen to anyone at any time and deprive you of your ability to make decisions. If you have minor children, a protection mandate allows you to designate a tutor for them. This designation will take effect only if the other parent is deceased or otherwise unable to act as tutor. Designating a tutor for minor children can avoid having one appointed by the court.

Why is a mandate necessary? The protection mandate gives you an opportunity to choose your mandatary and clearly express your wishes. Aside from the name of your mandatary (mandataries) and their substitute, the mandate can include instructions concerning:

Scope of the mandataries’ powers;

Family protection (e.g., appointment of a tutor if you are the parent of a minor child);

Access to your medical records;

Consent to donate your organs;

End-of-life care;

Accommodation (whether you want to stay in your home or be placed in a nursing home);

Management of your business if you have one;

Maintenance and management of property if you are a property owner;

Procedures for reporting on the administration of your property to prevent abuses.

Where do you start? The first step is to ask the person you would like to appoint as your mandatary if they are willing to accept this responsibility. The next step is to sign the mandate before two witnesses who do not stand to benefit from mandate. There is a form you can download directly from the Curateur Public du Québec website (under the Forms tab).

Why have a notarized mandate? You might prefer to have a notary draft your mandate. A notary can offer you advice based on your personal situation. A notarized mandate has three advantages:

It gives you access to legal advice about the mandate’s content and what you have to do to make sure it’s valid;

It’s easy to execute because you won’t have to look for witnesses to homologate the mandate;

It gives you peace of mind because a notarized mandate is harder to challenge in court and the original remains in the hands of the notary.

What about the power of attorney? The power of attorney is in effect while you are in full possession of your mental faculties. It gives the person you have designated in the power of attorney the authority to administer your property during a specified period of time, such as a trip or a hospitalization for example, or for an unspecified period of time. Unlike the mandate in case of incapacity, the power of attorney can be revoked. Your notarized mandate will be registered in the Register of Mandates of the Chambre des notaires du Québec, thus eliminating the risk that it might get lost or forgotten.  A mandate that is not notarized can also be registered through a notary. This procedure makes it easier to enforce the mandate in a timely manner.

The notary will discuss all of the aspects that need to be covered in light of your situation and draft a mandate tailored to your particular needs. Once the document is ready, it’s recommended that you give one copy to your mandatary and tell this person where the original is located. It’s also a good idea to tell your loved ones that you have a mandate.

You don’t have a protection mandate? Like many people, you may believe that in the event you can no longer make decisions in your best interest, your spouse or children can just step in and do it for you. However, if you don’t have a protection mandate, the court will appoint a tutor or a curator, depending on your level of incapacity, to act on your behalf. The court will consider the recommendation of relatives and friends, who will be called to a meeting so that everyone can give their opinion as to who is best qualified to look after you and administer your property. Until this process is complete or your mandate has been homologated, the rules concerning the management of a person’s affairs set out in Civil Code of Québec allow one individual, under certain conditions, to voluntarily manage the affairs of an incapacitated person.



Protection Mandate Incapacity

Your notary can also advise you for the preparation of a protection mandate incapacity and power of attorney adapted to your needs and your family context. A protection mandate, formerly called mandate in case of incapacity, will protect your interests and those of your family if your health makes you unable to take any decisions or act by yourself. The protection mandate allows you to designate one or several persons to take decisions on your behalf, express your wishes on the decisions which have to be taken and plan any instructions according to your situation if you are unable to do so someday. It’s an important document which deserves to be prepared with careful planning and drafted with the help of your notary. A protection mandate allows you to avoid that a person you have not chosen, or the Curateur public du Québec, takes care of you when you will not be able to do so.

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What conditions must fulfill a protection mandate given in anticipation of incapacity?

Preferably, a mandate of protection in anticipation of incapacity and power of attorney is notarized. If you choose a notarized mandate of protection, you will be sure that a notary hold the original document, and, on the other hand, you will be more reassured knowing that this document is more difficult to contest or to question in the courts of law.

Your notary certifies your consent and will record your mandate of protection to the Register of mandates of the Chamber of notaries.
The mandate of protection provides for the responsibilities of the mandatary / representative. He or she may act as an agent for the person and in this case they’re supposed to look after the physical and moral well-being of the incapacitated person, and in this case the mandatary can make decisions regarding health care, social or accommodation needs of the incapacitated person.

The price for the protection mandate, like any other legal act, varies according to the complexity of the case, the time spent on file, management and operation fees of the notary, the localization of the place of business, expertise, experience of the notary and various other conditions and situations.

Maître Lincà notary in Montreal offers a range of appropriate services to each individual situation and give you legal advice and tools necessary to achieve your goal, in the following cases: notarial will, protective mandate, power of attorney, and so on.

He will help you prepare these documents and make sure to phrase your wishes in a clear and precise manner. We can assist you in ensuring that all your wishes will be realized.