What clients ask her
- What is a mandate homologation procedure?
- My uncle had signed a protection mandate in the past. How does the notary determine whether the conditions required for its homologation are met?
- My uncle signed a protection mandate several years ago. Today, he is living in a long-term care facility because of the progression of Alzheimer’s disease. During the homologation process, the notary notes that he has lost his sense of time and place but retains certain memories of his childhood. Does the fact that he can answer certain questions correctly mean that he is still capable? How is incapacity assessed in the context of the homologation of a protection mandate?
- I am 22 years old and my sister is 11. Both our parents have died without leaving a will. I wish to take care of my sister and act as her tutor. What is the procedure to follow?
- The notary has called a meeting of relatives, persons connected by marriage or a civil union, or friends in order to appoint a tutor to the minor Mélissa Courtois. What is the role of this meeting? Who may take part in it, and how does the process of appointing the tutor unfold?
- At a meeting of relatives, persons connected by marriage or a civil union, or friends called in order to appoint a tutor to the minor Mélissa Courtois, a person who had not received the notice of convocation appears and asks to speak. Must the notary allow that person to take part in the deliberations? How should this situation be handled in order to ensure the validity of the meeting?
- After my father’s death, I discovered among his personal effects a holograph will written entirely in his own hand and signed by him. What steps must I take so that it can be carried out? Must this will be probated before the succession is settled?
- I found my father’s holograph will after his death. Under this document, I am designated as the sole heir of the succession. My sister and my brother, who receive no property, are now contesting the will. Is there a special procedure applicable to the holograph will? Is the fact that they were excluded from the succession sufficient to have the will annulled?
Institution of protective supervision
The institution or review of protective supervision may be undertaken before the court or, in certain circumstances provided by law, as part of a procedure conducted by a notary authorized to act in this matter.
When the required conditions are met, the notary carries out the steps provided by law, gathers the necessary information, holds the required meetings and consultations and prepares minutes of their operations and conclusions.
These minutes are then filed with the competent court, which remains responsible for rendering the final decision on the institution, modification or review of the protective supervision.
This procedure is intended to ensure the protection of vulnerable persons while allowing a rigorous examination of their personal, family, patrimonial and medical situation.
The notary supports the loved ones throughout the process and sees to it that the steps are carried out in accordance with the requirements provided by law.
The purpose of protective supervision is to ensure the protection of a person of full age who has become incapable while preserving, as far as possible, their autonomy and the exercise of their rights. It makes it possible to determine the nature of the assistance or representation the person needs and to identify the person who will be called upon to support them or to act on their behalf.
The protective measure put in place depends on the degree of incapacity and the particular needs of the person concerned. It is reassessed periodically to ensure that it remains suited to the person’s changing situation.
But why leave it to others to choose the person who will watch over you or administer your property if you become incapable?
The protection mandate allows you to designate in advance the trusted person or persons who will be able to take care of you, administer your property and see that your wishes are respected if you are no longer able to do so yourself.
Planning ahead today means keeping the power to choose tomorrow.
Protective supervision regimes
With age or because of an illness, some people may become unable to manage their property or to take care of themselves. When a person has taken care to sign a protection mandate while fully capable, the person or persons they designated will be able, should the need arise, to assume the responsibilities entrusted to them, in accordance with that person’s wishes.
When incapacity occurs, the protection mandate must be implemented according to the procedure provided by law. This process is intended to confirm the person’s incapacity and to allow the mandatary to exercise the powers entrusted to them.
The protection mandate is a valuable tool for planning ahead. It makes it possible to choose in advance the person who will make the important decisions concerning your person, your property and your well-being if you become unable to do so yourself.
In the absence of a protection mandate, or when the mandate does not adequately address the situation, the institution of a protective measure could become necessary in order to ensure your protection and that of your patrimony.
Planning today means keeping the freedom to choose who will represent you tomorrow and how your affairs will be managed if incapacity occurs.
When a person becomes incapable without having previously signed a protection mandate, certain measures provided by law may be put in place in order to ensure their protection and that of their patrimony.
The protective measure chosen depends on the nature and extent of the incapacity as well as on the particular needs of the person concerned. The objective always remains to give the person the necessary protection while preserving, as far as possible, the exercise of their autonomy and their rights.
The appropriate measure is determined in light of the assessment of the vulnerable person’s personal, family, medical and patrimonial situation. This measure may later be reviewed if the person’s condition changes.
The protection mandate, however, makes it possible to avoid leaving these choices to others. By designating in advance the person who will be able to take care of you and administer your property in the event of incapacity, you keep control over the important decisions that concern you.
Planning ahead today means making sure that one’s wishes will be known and that one’s protection will be entrusted to a trusted person of one’s own choosing.
When no protection mandate has been made, or when it does not adequately address the situation of the person who has become incapable, a protective measure may be put in place in order to ensure their protection and that of their patrimony.
The nature and extent of this measure are determined according to the person’s actual needs, their degree of autonomy and their capacity to exercise their rights and administer their property. The objective is always to give the person the necessary protection while preserving, as far as possible, their remaining autonomy.
The person called upon to represent or assist them will be chosen according to the rules provided by law, in light of their interest and their particular situation. The measure put in place may also be reassessed if their condition changes over time.
In the absence of a protection mandate, you choose neither the person who will be called upon to assist or represent you, nor the terms on which that protection will be exercised.
The protection mandate therefore remains the preferred tool for expressing your wishes in advance and designating the trusted person who will be able to make the important decisions concerning you if you become incapable.
Planning ahead today means keeping control over the decisions that may have to be made tomorrow.
In contrast to the institution of a protective measure, the protection mandate allows you to choose yourself the person or persons who will take care of you and administer your property if you become incapable. You may also determine the powers that will be entrusted to them and set out instructions suited to your situation and your values.
Designating the person called upon to represent or assist you is an important decision. By making a protection mandate while you are fully capable, you keep control over this choice and make sure that your wishes will be known and respected.
The protection mandate is above all a tool for planning ahead. It makes it possible to avoid uncertainty, to ease the steps your loved ones will have to take and to entrust your protection to a trusted person whom you have chosen yourself.
Planning ahead today means keeping the freedom to choose who will watch over you tomorrow.
Homologation of the mandate in case of incapacity
When a person becomes incapable after having signed a protection mandate, the person they designated as mandatary must take the necessary steps so that the mandate can be implemented.
This process requires, in particular, that the incapacity be established by means of the assessments provided by law and that the validity of the mandate be verified. The objective is to ensure that the mandate was validly signed while the person was capable and that the conditions required for it to take effect are met.
Once these verifications are completed, the protection mandate can be implemented in accordance with the wishes expressed by the mandator. The mandatary may then exercise the powers entrusted to them in order to see to the protection of the person, the administration of their property and respect for their interests.
The protection mandate thus makes it possible to ensure a smooth transition when incapacity occurs and to entrust the important decisions to a trusted person chosen in advance.
Planning ahead today means making sure that one’s wishes will continue to be respected even when one is no longer able to express them oneself.
When incapacity occurs, the person you designated in your protection mandate must take the necessary steps so that it can be implemented.
In many situations, this process can be carried out with the assistance of a notary authorized to act in this matter. After completing the verifications and formalities provided by law, the notary draws up minutes recording their operations and conclusions.
This procedure is intended, in particular, to confirm the incapacity of the person concerned, to verify the validity of the protection mandate and to allow the mandatary to exercise the powers entrusted to them in accordance with the wishes expressed by the mandator.
Turning to a notary often makes it possible to offer loved ones a process that is structured, humane and suited to the circumstances, while seeing that the rights and interests of the person who has become incapable are respected.
The protection mandate thus remains an essential tool for planning ahead, since it makes it possible to ensure that the important decisions will be made by a trusted person chosen in advance.
When the protection mandate is implemented, the mandatary may exercise the powers entrusted to them only once the steps provided by law have been completed.
After the file has been examined and the required formalities completed, the court determines whether the conditions required for the protection mandate to take effect are met. Only from the time of that decision may the mandatary act officially on behalf of the person who has become incapable and exercise the powers entrusted to them.
If the person’s condition later improves and they again become able to take care of themselves and administer their property, the protection mandate may cease to have effect in accordance with the rules provided by law.
The purpose of the protection mandate is therefore to ensure an intervention that respects the person’s autonomy, while allowing them to be represented when their condition truly requires it.
Planning ahead today means making sure that the persons who act for you tomorrow will do so in accordance with your wishes and in your interest.