A beautiful gift to offer oneself is to have the proper legal documents in place long before we need them so that our wishes are respected. This month we invited Marion Dana, a lawyer, to contribute to our blog posts to share the difference in the documents.
As they grow older, our loved ones may become vulnerable and need of protection. Of course, many seniors remain in excellent physical and mental shape throughout their lives, and can continue to independently care for themselves. Yet for others, that is unfortunately not the case, and they may require assistance taking care of themselves (such as preparing meals, taking their medication, and arranging medical appointments), or administering their affairs (such as paying their bills, going to the bank, or managing their investments). In these cases, it may be necessary to put measures in place to ensure that our loved ones are protected.
In Quebec, the following measures exist to protect vulnerable adults: advisors, tutorships, curatorships, and protection mandates.
A vulnerable person in need of protection may very well still be apt, meaning that she retains the capacity to take care of her person and to manage her affairs, yet nonetheless requires assistance with certain decisions. In such a case, an advisor can be appointed to assist her with certain actions, usually in relations to the management of her affairs, such as the purchase of a car. This advisor could not, however, act in the person’s name, and would not be able to sign a contract in the person’s name, for example.
Once a person no longer has the capacity to take care of her person and/or to manage her affairs, as described above, it may be appropriate to ask the Court that another person be appointed not only to assist her, but also to represent her. This would mean asking the Court to declare the person inapt, and to appoint her a tutor, curator, or mandatary.
Some people have what is called a “mandate in anticipation of their incapacity”, or a “protection mandate”. It is a document in which they designate the person (the mandatary) whom they wish to take care of them should they one day become incapable of doing so themselves. This document can list all the powers of the designated person, both with regards to the management of property and with regards to protection of the person. It may also contain a general power of attorney, though that is not obligatory. When the person who signed the mandate becomes inapt, this mandate will have to be “homologated”, meaning that it will have to be activated through the Court.
For those who don’t have a mandate, a “protective regime” is put in place, whereby a tutor or curator to the person is appointed, depending on the level of incapacity (partial or total, temporary or permanent) of the person in need of protection.
The mandatary, tutor or curator will be able to act in the person’s name, exercise her civil rights on her behalf, sign contracts in her name, make medical decisions on her behalf, and much more – the whole, of course, in consultation with the vulnerable person and in her interest.
Any interested person can ask for the institution of a protective regime for a vulnerable person: a spouse, family member, friend, the vulnerable person herself, or any other interested person. As for the mandate, it is only the person designated in the mandate who can ask the Court to homologate it for the protection of the vulnerable person.
In all cases (mandate, tutorship or curatorship), in order for any such measures to be put in place, the person must require protection. It is not sufficient for the person to be inapt. Medical and psychosocial evaluations will have to be conducted in order to determine the degree of incapacity of the vulnerable person and whether or not she needs to be protected.
In conclusion, when we notice that one of our loved ones has become vulnerable, it is time to think about either providing him with the assistance of an advisor, or homologating his mandate (if he has one) or putting in place a protective regime of tutorship or curatorship (if he has no mandate). This will help prevent our loved one from falling prey to harmful influence or exploitation from people who do not have his best interest at heart.
By Marion Dana, lawyer