What clients ask her
- What is the difference between a general mandate, a protection mandate and advance medical directives?
- When does a protection mandate take effect?
- What happens when a person becomes partially incapacitated?
- What are the powers and limits of a mandatary?
- How can I make sure my wishes will be respected if I become incapacitated?
- I was named mandatary under my spouse’s protection mandate. She is currently in hospital following a road accident. Her condition is serious and she has been in a coma for several weeks. Today, however, I discover that she is able to communicate by nodding to answer yes or no. Unlike me, who am opposed to aggressive treatment, she clearly expresses her wish to stay alive. As mandatary, can I make decisions on her behalf without taking her wishes into account?
The protection mandate: a mandate given in anticipation of incapacity
In anticipation of a possible incapacity, it is possible to choose today the person who will take care of us and see to the administration of our property. The law allows any capable person to designate, in a protection mandate, the trusted person who will act on their behalf if they one day become unable to make certain decisions themselves. This person is called the mandatary.
What a relief to know that a trusted person, freely chosen, whether a spouse, a brother, a sister, a friend or any other trusted person, will be legally able to make the important decisions concerning you if you become incapacitated.
How is it done?
To be fully effective, the protection mandate must be carefully drafted and adapted to your situation. It is generally advisable to provide for powers broad enough to allow the mandatary to act effectively, as well as a replacement mechanism should the mandatary renounce the office, become incapacitated or die. Depending on the needs and the complexity of the patrimony, it is also possible to designate one person to look after the person’s well-being and another to administer their property.
The protection mandate may also contain instructions on health care, end-of-life wishes and organ donation. It is generally recommended that it be executed in notarial form. In addition to the benefits of the notarial act, the mandator can thus obtain the advice of a legal professional on its scope, its effects and how it will be implemented in the event of incapacity.
A mandate executed before a notary can be obtained as an authentic or certified true copy when required. The original of the notarial act en minute is kept securely in the notarial profession’s technological vault, ensuring its preservation, integrity and accessibility over time.
The registry of mandates given in anticipation of incapacity: for better protection
The Chambre des notaires du Québec has set up a centralized registry that makes it possible to quickly trace the existence of a protection mandate. This mechanism makes it easier to implement the mandate when it becomes necessary and helps ensure that the wishes expressed by the mandator are respected.
Once the protection mandate is signed before a notary, the notary enters it in the Registry of Protection Mandates kept by the Chambre des notaires du Québec. This registration makes it easier to locate the mandate when it becomes necessary to implement it and helps ensure that the wishes expressed by the mandator are respected.
The Registry of Protection Mandates offers several advantages. It makes it possible to quickly trace the existence of a mandate, to identify the most recent version and to reduce the risk that it be overlooked or discovered late when it becomes necessary to implement it.
What if you change your mind?
Situations change over time. The person we would have chosen as mandatary several years ago is not necessarily the one we would choose today. Fortunately, as long as a person remains capable, they can at any time modify or revoke their protection mandate and sign a new one better suited to their reality and their wishes.
The mandatary’s duties
The protection mandate entrusts the mandatary with important responsibilities. Should you become incapacitated, the mandatary may be called upon to make certain decisions concerning your person, notably regarding health care, in accordance with your wishes, your interests and the rules set out by law.
The mandatary may also be called upon to administer your property, notably to collect your income, make certain investments, pay your financial obligations and file your tax returns. The mandatary also sees to your well-being and quality of life by making the decisions needed for your comfort, your housing and your daily needs.
The role of mandatary carries important responsibilities. A mandatary who wishes to end their functions cannot simply step down without taking the steps needed to ensure the continued protection of the person represented. Depending on the circumstances, the mandatary will have to ensure their replacement in accordance with the mandate or take the necessary steps to open a protective supervision. The mandatary also remains bound to render an account of their administration.
Who is it for?
Changing lifestyles, the diversity of family models, longer life expectancy and the geographical distance of loved ones are all reasons to plan ahead for who will be able to make the important decisions if incapacity occurs. The protection mandate makes it possible to designate a trusted person so that they can act in accordance with your wishes when you are no longer able to do so yourself.
Although the protection mandate is useful to anyone wishing to plan for the future, it is particularly important in certain situations, notably for de facto spouses, separated persons whose marriage or civil union has not been dissolved, people who have little contact with their relatives, and entrepreneurs and business people.
