Protection Mandate: Ensure That Your Wishes Are Respected
The Protection Mandate:
For the respect of your dignity and because falling ill or having an accident can happen to anyone.
A notarized protection mandate helps ensure that your dignity is preserved—because no one is immune to illness or accidents.
No one plans to become incapacitated. But the reality is that it can happen to anyone at any time. Contrary to popular belief, your spouse or child is not automatically entitled to make decisions on your behalf or manage your assets in the event of incapacity.
Without the right legal documentation, a protective supervision regime such as a tutorship will have to be opened. This involves a court process, the intervention of the Curateur public of Quebec, and a family council meeting (also called the Assembly of Family, Friends, and Allies).
This procedure is lengthy and costly, and it provides no guarantee that the person appointed will be the one you would have chosen—or that they will act in your best interests.
A protection mandate ensures that your personal care and property are managed according to your values in the event of illness or accident.
What Is a Protection Mandate?
Also known as a mandate in case of incapacity, a protection mandate is a critical legal document in Quebec.
It allows you to designate one or more mandataries to:
- Ensure that you receive appropriate personal and medical care;
- Oversee the management of your property and financial affairs.
This applies whether the incapacity is temporary or permanent.
Incapacity is legally defined as the inability to act, reason soundly, or communicate your wishes and preferences.
Establishing a Power of Attorney
A power of attorney allows someone to temporarily act on your behalf while you are still capable. For example, a banking power of attorney may help if you’re travelling or unable to get to your bank. The mandatary can deposit or sign cheques for you.
However, if you become incapacitated, a power of attorney loses legal effect. Without a protection mandate, your family may have to go through a court process to appoint a tutor, with all the associated time, costs, and stress.
Only a verified and homologated protection mandate will be legally valid for managing your affairs if you are deemed incapacitated.
How Is the Protection Mandate Verified (Homologated)?
Does the protection mandate automatically come into effect when someone believes that I am no longer capable? The answer is no.
To take legal effect, your mandate must be homologated (probated), a process that confirms your legal incapacity and confirms the mandate. A doctor and a social worker must have evaluated your condition.
The type of mandate and the specifics of your case may influence the steps required. For guidance through the full process, including drafting, homologation, or opening a tutorship regime, speak with our specialized notaries.
What Is Tutorship to a Person of Full Age?
If no protection mandate exists and no mandatary has been named, the law requires the appointment of a tutor.
Tutorship is tailored to the adult’s remaining capacity. A tutorship council is created to supervise the tutor’s actions. This council receives yearly reports and must be consulted for certain decisions as outlined by law or specific conditions.
Tutorship for Minors: What You Need to Know
By default, parents are legal tutors to their minor children. However, if both parents pass away, a tutor must be appointed to make legal and life decisions for the child.
This can be arranged through your will. Without one, the court will step in to appoint a tutor.
Furthermore, if a child receives an inheritance or gift exceeding $40,000, the parents must set up a tutorship council to supervise the financial management on the child’s behalf.
Our team of notaries can assist you in navigating these requirements with clarity and care.
Wise Advice and Knowing Where to Start
The Value of a Notarized Protection Mandate
A notarized protection mandate is the most efficient and cost-effective option when facing long-term care or incapacity.
- Clarity and Security: Once drafted, a notarized mandate includes all the legally required elements—reducing the chance of dispute or rejection.
- Efficiency: When medical proof of incapacity is provided, your notary can proceed directly to homologation without needing to track down witnesses to confirm your signature.
- Cost Savings: There are no further legal procedures needed—just homologation—for the mandate to come into force.
- Safe Recordkeeping: Your mandate is securely stored in the Notary’s records meaning it cannot be lost, misplaced, or destroyed.
Does a Banking Power of Attorney Replace a Protection Mandate?
No. A banking power of attorney becomes invalid upon your incapacity.
Additionally, it is limited to that specific bank and cannot be used to manage your full financial affairs, such as your mortgage, tax obligations, or investment portfolio.
Why Choose Lettre & Brown?
Lettre & Brown Inc. is a firm of notaries with deep expertise in personal and family law. We help you prepare for the future, no matter what it holds.
Our professionals adhere to rigorous practice standards and are supported by a responsive, skilled technical team.
Notaries who offer this service
We are your family notaries. We can help you.
Our services are available in our offices or remotely. Do not hesitate to contact us.