Mandates
Every person has the freedom and the right to make the decisions concerning the person’s life, assets, health and well-being.
But what happens if a person is not capable anymore, mentally or physically, to take care of himself (herself), for example in case of sickness or of an accident. If a situation of incapacity takes place, measures have to be taken in order to face the situation and ensure that the life of the person continues in a way to ensure the person’s well-being.
The Law offers the possibility to open a regime of protective supervision for the persons that have become incapable. This regime of protective supervision is generally requested by the members of the family or by the person himself (herself) if the person is aware that a process of incapacity is in progress, but the person is still sound of mind.
The regime of protective supervision is open by a decision of the Court. Before declaring someone incapable, the state of incapacity has to be proven and it is a judge who decides on that issue upon the evidence presented before the Court.
Any normal person can make a mandate in case of incapacity. If this mandate is made before a lawyer or before a notary, the mandate is registered in the registers of the Quebec Bar or of the Chambre des notaires.
The main advantages to making a mandate in case of incapacity are:
- The person making the mandate can choose and appoint the person in which he (she) has the more confidence, the one that will take care in the best possible way of him (her) when the incapacity occurs, the one that will always take the best decisions for the person's well-being and for the administration of his (her) assets;
- The person making the mandate can express some wishes, for example regarding the living environment, the health care and medical treatments, the administration of the assets;
- The person making the mandate can establish the limits and the duration of the mandate according to the level of incapacity and the change of circumstances, for example if the mental and medical condition of the person improves and the person becomes again capable, totally or partially, the person can express the wish that the protective supervision comes to an end or is reviewed;
Often a person making a mandate in case of incapacity is also making by the same occasion a will.
Me Robert Brankin can assist you in preparing a mandate in case of incapacity and can assist the authorized persons in preparing and filing the legal proceedings for homologation of the mandate in order to have the regime of protective supervision opened.