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Family law and couples

Mental incapacity: means of protection

Mental faculties can deteriorate with age, to the point where some people can no longer manage their own affairs or take care of themselves (loss of memory, impaired judgment, etc.).

If, while you are still in full possession of your mental faculties, you sign a mandate in anticipation of mental incapacity, the designated mandatary can take over when necessary. In most cases, instead of presenting a motion to the court to have the mandate homologated, the mandatary may apply to a notary, specially certified by his professional order, to have the mandate declared enforceable by following the procedure prescribed by law.

If, prior to your becoming incapable, you do not give such a mandate, the law will provide for the institution of protective supervision. Depending on the degree of your incapacity, protective supervision may be in the form of curatorship, tutorship or advisership.

A curatorship is instituted if you are totally and permanently unable to take care of yourself or administer your property. A tutorship is instituted if your inability to take care of yourself or administer your property is partial or temporary. An advisership is instituted if you are generally capable of taking care of yourself and your property, but require assistance for certain acts. These different forms of protective supervision are reviewed periodically under the law. You do not have control over the type of protective supervision that is exercised over you or the person who will be appointed your curator, tutor or adviser.

Here again, instead of a motion presented in court, an application for the institution or review of protective supervision may be submitted to a notary specially certified by his professional order.

Unlike the institution of protective supervision, a mandate given in anticipation of incapacity allows you to choose, yourself, the person who will administer your property and take care of you should you become incapable, and allows you to choose the powers that person will have. The choice of such a person is too important to be left to someone else... To ensure that your choice is respected, consult your notary.