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Family law and couples

The mandate given in anticipation of incapacity

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 that might deprive us of our mental faculties.

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. And yet...

The court may, on a motion, institute or review protective supervision.

An application for the institution or review of protective supervision may also be presented to a notary who has been specially certified by his professional order. The notary follows the procedure established by law, draws up notarial minutes of operations and conclusions and deposits an authentic copy at the office of the court. The conclusions set out in the minutes must be confirmed by judgment.

The type of protective supervision determines the nature and scope of the moral and material protection that will surround the incapable person of full age. A person is appointed to represent or assist him. Depending on the degree of incapacity, protective supervision may be in the form of a curatorship, tutorship or advisership. Whatever the nature of the supervision, it must be periodically reviewed according to law.

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

Do you know who would be appointed to represent or assist you? What type of protective supervision would be instituted? Wouldn’t you rather decide for yourself?

Fortunately, people today 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 “mandate in anticipation of incapacity,” the person who will ensure his or her well-being and the administration of his or her property or assets in the 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.