Homologating a Protection Mandate: The Good, the Bad, and the Ugly
This article explores various situations related to homologating a protection mandate, discussing issues such as cognitive incapacity, powers of attorney, appointing mandataries, and the importance of involving the incapacitated person in decision-making. It also highlights the importance of proper steps to ensure the effectiveness and ethical handling of protection mandates.
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Homologating a Protection Mandate: the Good, the Bad, and the Ugly By: Marcella De Piano, notary Vanessa Gregorio, lawyer
Situation #1 I noticed a decline in my mother s cognitive capacity. Is she incapable? What is incapacity ? Cognitive incapacity vs. physical incapacity Temporary vs. permanent What is a protection mandate? Formerly known as a mandate in case of incapacity or a mandate given in anticipation of an incapacity Homologation
Situation #2 My mother s doctor and social worker recommend homologating her protection mandate. I am appointed as her mandatary. What are the next steps? The Good Convene a family meeting Involve the incapacitated person Discuss the homologation process Meet with doctor and social worker The Bad and the Ugly Don t involve the incapacitated person Disregard the incapacitated person s wishes Conceal information from the family Covertly begin the homologation process
Situation #3 I signed a power of attorney. Do I need a protection mandate? The Good Necessary in the event of an incapacity Useful at any age The Bad and the Ugly Limitation of the power of attorney Protective supervision (curatorship or tutorship) failing a protection mandate Vulnerability and susceptibility to financial exploitation
Situation #4 My spouse has predeceased me and I have children, one of whom lives abroad. Who should I appoint as my mandatary? The Good Your choice (examine circumstances, family dynamic, personal situation, practicality etc.) Ability to divide the powers (mandatary to the person and to the property) Appointment of a trust company for the administration of the property The Bad and the Ugly Appointing all of the children or the eldest child without factoring in the circumstances, family dynamic, personal situation, practicality, etc. Old wounds resurfacing
Situation #5 Should I appoint replacement mandataries in my protection mandate? The Good Ensures the perennity of the protection mandate The Bad and the Ugly Application for protective supervision (tutorship or curatorship) Establishment of a tutorship council Annual rendering of account to the tutorship council and Public Curator of Quebec Appointment of tutor or curator chosen during a meeting of relatives, persons connected by marriage, or friends
Situation #6 I customarily give gifts to my children and grandchildren for birthdays, holidays, and other major life events. Can my mandatary continue to give such gifts in the event of my incapacity? The Good Provisions in the protection mandate Article 1813 Civil Code of Quebec A minor or a protected person of full age, even represented by his tutor or curator, may make gifts only of property of little value or customary presents, subject to the rules pertaining to marriage or civil union contracts. The Bad and the Ugly If no provisions L. (M.) c. K. (I.), (C.S., 1996-12-10), SOQUIJ AZ-97021065, J.E. 97-220, [1997]: gift of property must be of little value and the definition of little value does not vary and is not proportional to the incapacitated person s personal patrimony. Sasseville et J.-M.G., (C.S., 2005-11-04), SOQUIJ AZ-50341561, J.E. 2005- 2180, [2005]: all gifts or customary presents must be paid for by the incapacitated person s income; no encroachment of capital permitted.
Situation #7 I have always assisted my children when they experienced financial difficulties. Can my mandatary continue to assist them in the event of my incapacity? The Good Provisions in the protection mandate The Bad and the Ugly If no provisions, restrictions of the protection mandate Desperation of child in financial difficulty and lengths to obtain the money
Situation #8 My father s cognitive health is declining. His bills are piling up and the nursing home is threatening to kick him out. I do not have access to his account and his protection mandate has not been homologated. What can I do? The Good Provisional administration (safeguard order) Article 2167.1 Civil Code of Quebec In the course of homologation proceedings or even before if a request for homologation is imminent and it is necessary to act to prevent serious injury for the mandator, the court may issue any order it considers necessary to ensure the personal protection of the mandator, his representation in the exercise of civil rights or the administration of his property. An act under which the mandator has already charged the administration of his property to another person continues to produce its effects notwithstanding the proceedings, unless the act is revoked by the court for a serious reason. The Bad and the Ugly Not involving the incapacitated person or other family members Self-represented litigants
Situation #9 Does my mandatary need to render an account of his administration once the protection mandate is homologated; if so, to whom? The Good Provisions of the protection mandate The Bad and the Ugly Not involving the other family members Perception
Situation #10 Who needs to be notified that my protection mandate is being homologated? Article 404 Civil Code of Procedure Incapacitated person Substitute mandataries Person designated to receive a rendering of account Two other family members or persons who have a special interest in the incapacitated person Public Curator of Quebec The Bad and the Ugly Intentionally excluding family members to avoid conflict or contestation
Situation #11 What do you recommend once the protection mandate has been homologated? The Good Family debrief Review the judgment Discuss the role of the mandatary and other provisions of the protection mandate Establish a protocol for the day to day operations The Bad and the Ugly Misinterpretation of the judgment by the incapacitated person or other family members
Marcella De Piano and Vanessa Gregorio are both professionals working at BCF s Montreal office. They are members of BCF s Wealth Protection team. Their bios and contact information are available on : http://www.bcf.ca/en/strategic- teams/wealth-protection
Thank you Homologating a Protection Mandate: the Good, the Bad, and the Ugly
