MANDATE IN CASE OF INCAPACITY
IT CAN HAPPEN TO ANYONE…
The prospect of losing the ability to make decisions for oneself is no joy for anyone. However, no one is immune to a serious accident or illness that could deprive him of the use of his intellectual faculties. If such a misfortune struck you, who would take care of you and your property?
SEND YOUR RENT CHECK, DO YOUR SHOPPING, MAKE AN APPOINTMENT WITH YOUR DENTIST ...
When you are independent, lucid and in good health, that you take care of your own affairs, it is difficult to imagine that one day one may become incapable of performing these routine actions. And yet ...
WHAT TO DO ?
To be fully effective, the mandate must be as complete and precise as possible, give broad powers to the agent and provide for the replacement of the agent in the event that, for example, the latter intends to resign, becomes himself unfit to act or dies. If desired, one can even choose an agent responsible for the well-being of his person and another to take care of his property, when the complexity of the heritage justifies it. We can also include in the mandate certain provisions to ensure a soft and natural death, to provide for organ donation, etc.
Ideally, the mandate should be made before a notary. Indeed, the notarial form allows the principal to obtain from a legal professional all the information and advice concerning the action he intends to take: its usefulness, its consequences, the formalities for its coming into force, etc. But the mandate can also be made under private seal, that is to say signed before two witnesses who have no interest in the act. These witnesses must also be able to ascertain the capacity of the principal to act when he signs the mandate. The notarial mandate, however, provides greater security since it is difficult to contest. The notary can testify that the signatory has understood the meaning and scope of the mandate and that he signed this document while he was in full possession of his means. In addition, the principal and the agent may obtain as many copies of this mandate as necessary since the notary remains the custodian of the original signed before him.
THE REGISTER OF MANDATES GIVEN IN ANTICIPATION OF INCAPACITY FOR BETTER PROTECTION
Quebec notaries have a centralized registration system to ensure that your mandate is easily found in order to guarantee your wishes are respected. Once your mandate has been signed with the notary, he will register it in the Register of mandates given in anticipation of incapacity held by the Chamber of Notaries.
The Mandate Register has definite advantages:
- it facilitates the discovery of any notarial mandate; it identifies your last notarized mandate;
- it eliminates any risk of the mandate being ignored or retraced too late after your incapacity.
WHAT IF WE CHANGE OUR MIND?
Over time, situations change. The person chosen when you were a young adult may no longer have the same importance when you reach middle age. What does it matter! Sane, you can always, and at any time, revoke a mandate and choose to make another one.
THE EXECUTION OF THE MANDATE
IF YOU BECOME INCAPACITATED, YOUR ATTORNEY WILL HAVE TO SEE THAT THE MANDATE TAKES EFFECT.
It will be for him to establish proof of your incapacity by means of a medical and psychosocial assessment and demonstrate that you have validly consented to this mandate.
To do this, your representative may opt to go directly to court and seek to obtain a homologation judgment.
In a much simpler way, your representative may rather choose to present, to a notary accredited to act on the matter by his professional order, a request to certify that the mandate becomes effective. The latter, after having followed all the procedure established by law, will draw up a notarized report of operations and conclusions and file an authentic copy with the registry of the competent court. A judgment of the court will accept or not the conclusions of these minutes. It is only after having obtained the homologation judgment or the judgment confirming the notary's minutes that the agent will be able to fulfill his role.
The effects of this mandate cease when the court finds that the principal has again become able to act.
DUTIES OF MANDATARY
Important responsibilities lie with your mandatary. Thus, he is the one who give consent to the health care which must be provided to you: he must accept or refuse that you receive such treatment; he must accept or refuse that such a surgical procedure be carried out, etc. He must also administer your property: make your investments; pay your accounts; collect your income; do your tax returns, etc. He also takes care of your physical well-being: buy your clothes; provide entertainment, etc.
The mandatary may not resign without having ensured that he has been replaced by another mandatary (if the mandate provides for the possibility of replacing the resigning mandatary by another person) or without having requested the opening of a protection scheme. The mandatory who resigns must account for his management.
New lifestyles, the advent of reconstituted families, extended life expectancy, the distancing of family members are all factors in favor of appointing, in advance, a mandatory chosen in anticipation of incapacity. Although it is beneficial for everyone to take advantage of this possibility, the following people have a special interest in doing so:
- spouses living in a common-law relationship;
- de facto separated spouses, whose marriage or civil union has not been dissolved;
- individuals with little or no contact with other family members;
- business people.
The texts come entirely from the brochures of the Chambre des notaires du Québec.