Why should you draft a protection mandate and who should you choose as your mandatary?

15 November 2022 by National Bank
mandate in case of incapacity, power of attorney in case of incapacity

In Quebec, a protection mandate makes life easier for your loved ones and allows you to make informed choices in the event of incapacity. This document sets out who will take care of you if you are incapacitated by an illness or accident and who will manage your assets. Here's an overview of the key things you should know about protection mandates.

What is a protection mandate?

A protection mandate is a document used to designate the person who will take care of you and your property if you lose the ability to do so yourself. Such incapacity could be temporary or permanent. 

A protection mandate involves two main parties. These are:

  • The person protected, or mandator
  • The person chosen to take care of the person and their property, or mandatary. You can appoint two different people as your mandataries, one to take care of you (mandatary to the person) and one to take care of your property (mandatary to the property). 

Using the right terms:

The protection mandate was formerly known as a mandate in case of incapacity.

What's the difference between a protection mandate and a power of attorney?

A protection mandate applies if you are incapacitated. A power of attorney applies if you are still able to make your own decisions but want another person to be able to act on your behalf. 

Example: You could give one of your children power of attorney so they can access your account and pay your bills while you are abroad. Although you possess the faculties to do so yourself, it's more convenient to assign someone to act for you in this situation.

A power of attorney can remain in effect as long as you are not declared incapacitated. 

What's the difference between a protection mandate and a will?

A protection mandate allows you to decide who will take care of you and your property if you become incapacitated. It applies while you are alive.

A will, on the other hand, allows you to choose who your property will be bequeathed to after your death

What are the two types of protection mandates?

Notarized protection mandate

This type of protection mandate is drawn up by a notary and registered in the Register of Testamentary Dispositions and Register of Protection Mandates of the Chambre des notaires du Québec.

The notary will verify that you consent and are of sound mind. This type of mandate is more difficult to contest

The notary can also give you advice to help make sure the contents of the document are tailored to your situation

Protection mandate before witnesses

This type of mandate must be signed in the presence of two adult witnesses who must not have any interest in the protection mandate

You can draft it alone or with the assistance of a legal professional.

→ The Public Curator of Quebec offers a free template (link to external site). 

Tip: If you choose this option, keep the original document in a safe place and let your family know that it exists.

What does a protection mandate contain?

Your protection mandate sets out your wishes in the event of incapacity as concerns:

  • Your personal wellbeing  
  • Your property 

When it comes to your wellbeing, you could indicate:

  • The medical interventions you would agree to or refuse
  • The type of residence you prefer 
  • Your end-of-life wishes

When it comes to managing your property, you should specify the scope of the powers granted to your mandatary

Example: You could require your mandatary to obtain agreement from one or more people before selling some of your assets.

A protection mandate can also specify:

  • Whether the mandatary will carry out their tasks for free or be compensated from your estate.
  • Who will take care of your minor children if another parent is not available.

Can a protection mandate be amended?

Yes, you can amend your protection mandate as long as you are of sound mind. You can make changes in the presence of two witnesses or a notary. You can also draw up a new mandate in the presence of two witnesses or a notary. The previous mandate will then be cancelled.

When does a protection mandate take effect, and when does it end?

A protection mandate can take effect once you are declared to be incapacitated and the mandate is made official, or homologated.

The homologation process involves a number of steps and can take several months. It involves: 

  • Confirming incapacity via a medical and psychosocial assessment
  • Requesting an authorization from the court 

The mandate can be terminated if the mandator recovers their faculties. However, the court must declare that the person is again capable of taking care of themselves and their property.

A mandate can also be terminated: 

  • Upon the death of the incapacitated person
  • If the mandatary resigns, becomes incapacitated, dies or is dismissed and there is no substitute mandatary

What are the legal responsibilities of a mandatary? 

There are two main roles for mandataries under a protection mandate. You can appoint one mandatary to take care of your person and your property, or appoint two different people.

The mandatary to the person will see to your physical and mental wellbeing.

They will make decisions concerning the following aspects:

  • Housing
  • Clothing
  • Food 
  • Personal hygiene
  • Entertainment
  • Care 

The mandatary to property will take care of your property and finances

You can visit the Public Curator's website for the details of the mandatary's responsibilities (link to external site).

How should you choose your mandatary?

You can designate any adult as your mandatary: your spouse, your sister, your cousin, etc. 

Be sure to choose someone you trust. Your mandatary will have to make important decisions on your behalf. Since they will have a number of duties, you should choose someone trustworthy and responsible.

You should also ask the person if they accept the responsibility. It's better to make sure they agree ahead of time; if they refuse the responsibility, your protection mandate may not take effect.

Tip: Appoint one or more substitute mandataries. If you become incapacitated and your first choice is unwilling or unable to take on the role, another person of your choice can step in.

What happens if the mandatary fails to properly carry out their duties?

To prevent abuse, you should require your mandatary to take inventory of your assets as soon as you are declared incapacitated. You should also require them to render an account each year to the persons of your choice. The mandate can also require those persons to agree before your property can be sold.

If a mandatary is not properly fulfilling their obligations, the situation can be reported to the Public Curator for investigation. Your loved ones may also petition the court to have the mandatary dismissed.

A protection mandate can simplify the lives of your loved ones, while allowing you to make your own decisions and choose a person you trust to take care of you.

Would you like to discuss this with us? Contact your National Bank advisor or your wealth advisor at Financial National Bank for more info. Don't have an advisor? Schedule an appointment in just a few minutes.

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