Roughly a third of Quebecers are likely to become incapacitated during their lifetime. Accidents can happen at any time! If illness or an unfortunate event renders you incapable of making decisions, who will take care of you and your loved ones? Who will manage your assets? A protection mandate settles these questions. Here’s what it entails and why it’s so important.
WHAT IS A PROTECTION MANDATE?
Formerly known as a “mandate in case of incapacity,” a protection mandate nominates one or more persons (mandataries) to look after your well-being and assets in the event that you (the mandator) become incapable of doing so yourself. To be valid, the document must be drawn up when you are in full possession of your mental faculties—that is, before you become incapacitated. —that is, before you become incapacitated.
Incapacity is not merely the loss of physical and cognitive abilities caused by a degenerative disease such as Alzheimer’s. It can occur at any time in your life, even in young, healthy people. Strokes, heart attacks, ruptured aneurysms, serious falls or road accidents can lead to incapacity. A protection mandate helps the people caring for you to make decisions on your behalf and prevents your assets from being frozen for an indeterminate period.
The mandate nominates a person or persons who will perform two tasks: take care of your person and manage your assets. You can appoint a single mandatary for these two responsibilities or divide them between two or more people. We advise you to discuss this with your loved ones and obtain their consent before naming them in your mandate.
WHAT HAPPENS WITHOUT A MANDATE?
If you don’t have a protection mandate, your spouse or loved ones must ask the court to set up a protection plan. If no one comes forward, the Public Curator can make the request. Setting up a protection plan (tutorship) is time consuming and costly, not to mention that your loved ones will need to get involved in the process.
Furthermore, without a protection mandate:
- Your spouse may be unable to withdraw money from your account to pay bills or your mortgage.
- It will be impossible to sell your car or property you own before a protection plan is set up.
- If you fail to name a legal guardian in your mandate and both parents die or become incapacitated,
your minor children could potentially find themselves under the care of the Directeur de la protection de la jeunesse and be placed in a foster home or youth centre.
ADVANTAGES OF A PROTECTION MANDATE
The mandate makes it easier for you to be cared for by your loved ones, who may already be dealing with the shock of what has happened to you. Unlike a will, the decisions you make in the mandate affect you personally: they may impact how your assets and your lifestyle are managed.
A protection mandate allows you to do the following:
- Appoint a trustworthy person to take care of you and your family. You can decide whether or not to remunerate this person and plan for replacements.
- Appoint a legal guardian for your minor children.
- Define the extent of the mandatary’s powers (e.g. sell or mortgage your property, use your money to meet the needs of your spouse and children).
- Reduce the costs and delays for your care to be handled
The mandate ends upon your death or when you recover and become capable of handling your affairs again. In the latter case, you will certainly be relieved to know that things were in good hands when you were unable to look after them.
WHY PREPARE A MANDATE WITH A NOTARY?
Notaries advise you in a way that your mandate is drafted in accordance with the legal requirements. They also ensure that your mandate is enforceable as soon as you become incapacitated—once it has been homologated by the court. Futhermore, notaries are required to register the document in the Register of Protection Mandates of the Chambre des notaires and keep the original. A notarized protection mandate is an authentic act that is difficult to contest in court.
KEEP CONTROL WHEN YOU’VE LOST CONTROL
Prepare your protection mandate before you are no longer legally able to do so. It will save your loved ones future troubles and ensure your wishes are respected. You can draw it up at the same time as your will, if you don’t already have one. In any case, don’t hesitate to contact us for more information.
The information provided in this article is for general information purposes only and does not represent legal opinion or advice. Consult your notary to obtain information adapted to your situation.