Mandate in case of incapacity

Responsibility: The Curateur public du Québec

Any person of full age who is capable of exercising his or her rights may designate in advance the person or persons who may make decisions on his or her behalf concerning his or her person and property in the event that he or she becomes incapable of doing so. To this end, the person must draw up a "mandate in case of incapacity".

There are two types of mandates

• the mandate made before witnesses
• the mandate made by notarial act.

No form is required to draw up a mandate. However, a model can be found in the pamphlet Mon mandat en cas d'inaptitude produced by the Curateur public du Québec.

The mandate in case of incapacity is a written document in which the mandator gives the mandatary the power to take care of the mandated person or his or her property, or both (depending on the content of the mandate), if the mandator becomes incapacitated. In it, the mandator expresses his or her wishes in advance in the event that, one day, he or she is no longer able to do so. The mandate contains :

• the date on which the mandate is drawn up
• the name of the principal
• the name of the mandatary or mandataries
• the signature of the principal;
• a statement dated and signed by 2 witnesses who are not mentioned in the document.

The content of the mandate is left to the discretion of the principal. The preparation of such a mandate, if it is complete, makes it unnecessary to open a protection plan.

Note: The examples of mandates in case of incapacity include texts similar to a living will. These texts can be adapted to meet individual needs. It is not necessary for the living will to be part of the mandate in case of incapacity as such; unlike the mandate, the living will does not have the force of law, it only gives indications to the mandatary.

POSSIBLE FORMS OF MANDATE

The law provides for 2 forms of mandate in case of incapacity, namely

Mandate made by notarial act :
This mandate is prepared by a notary according to the wishes and needs of the mandator and registered at the Chambre des notaires. If the mandator becomes incapacitated, this document is easily found in the Register of Testamentary Dispositions and Mandates.

Witnessed Mandate (with or without the assistance of a lawyer):
This mandate is written by the principal or another person designated by the principal. All the principal has to do is write out his or her wishes and sign it in front of two witnesses. (Note that the mandate may be signed by another person at the request of the principal, in his or her presence and following his or her instructions);

the witnessed mandate prepared by a lawyer is registered with the Barreau du Québec and can be easily found in the Register of Wills and Mandates.

Regardless of its form or content, a mandate in anticipation of incapacity is enforceable only after it has been homologated by a court, i.e. after it has been examined by a clerk of the court or by the judge of the Superior Court of the judicial district in which the mandator has his or her domicile or residence, and the mandator's incapacity has been established by the same court.

DRAWING UP A NEW MANDATE OR AMENDING A MANDATE

A competent person may at any time redraft his or her mandate or modify its content. The new mandate must meet the needs of the person who created it and comply with the formal rules imposed by law.

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