The protection mandate and its importance
Formerly known as a mandate given in anticipation of incapacity, the protection mandate is a legal document that protects you and your assets in the event that you are no longer able to do so. Indeed, it allows you to choose the person(s) who will act and make decisions on your behalf if you become unfit, in the event of an accident, or if you suffer from a disease that impairs your abilities, for example. It is of paramount importance, since we are unfortunately never immune from such a situation.
First, you should know that the mandate must be homologated even if your mandatary already holds a power of attorney allowing them to represent you, since it becomes void the moment you become incapacitated. It goes without saying that you must choose one or more people you fully trust to make decisions on your behalf. Your mandatary will be the person who will be responsible for managing all your bank accounts and make decisions regarding your medical treatments, if necessary. For this reason, it is very important that you give clear and precise instructions when drafting your mandate to ensure that your desires and preference are known. These will be the guidelines followed by your mandatary when making decisions about you, whether it be regarding your well-being, your assets, or the powers granted to them. Having a protection mandate is crucial, since your mandatary will be the steward of your heritage and help you in your personal decisions. It allows you to decide who will become responsible and thereby minimize the involvement of the Public Curator and avoid the other legal protective measures below.
Your mandatary, i.e., the person you have appointed to make the decisions on your behalf in the event that you become unfit to do so, must first proceed with the homologation of the mandate by the court. You will need to hire a lawyer or a notary for help with this legal process. The mandatary must carry out this process before they can act on your behalf, at their own expense. However, they can usually Be reimbursed of these costs after the homologation process ended. Note that it will take a period of approximately 6 months to gather all the documents necessary for the procedure to obtain homologation. It is therefore essential to begin the process as soon as the incapacity is confirmed. To apply for homologation, certain documents are required, including a medical and psychosocial assessment demonstrating your inability to make the decisions yourself.
In the event that you become incapable and that you have not produced a protection mandate, any person in your social circle may apply to the court or a notary to establish a tutorship in your favour. In other words, this is a request to appoint a tutor for you. However, the applicant will not necessarily become your tutor, and it is the court that will make the final decision to establish the tutorship or not, after your notary has collected the necessary documents and taken certain steps, such as informing your social circle of the request for tutorship, since everyone has the right to voice their opinion during this process. In addition to the tutorship, the social circle must determine members of the tutorship council, who will supervise the tutor so that they perform their duties in due form and are accountable for this purpose. Subsequently, the court will render its decision by taking into consideration several elements and will decide what actions will fall under the responsibility of the tutorship, this is called modulation of tutorship.
In other cases, the circle of the incapacitated person may also request a temporary representation rather than tutorship. This is a request that will authorize your representative to act on your behalf for a specific situation, for a specific act, and for a specific period of time. For example, your representative may act on your behalf to represent you in a lawsuit, to sign a lease, or to sell a house. In short, the court may authorize your representative to act in any determined legal act. Appointing a temporary representative fosters the autonomy of the unfit person, who will continue to make their own decisions. Of course, the representative must act in their interest and respect their rights and wishes. Temporary representation ends after the act has been performed, or when the incapacitated person is placed under the tutorship or their protection mandate is homologated.
All in all, the protection mandate is just as important as a will. It will be your greatest ally while you are still alive, whereas your will protects your assets and interests after your death. Call on one of our professionals to help you in the process of drafting your protection mandate so you can have peace of mind for how things will unfold, regardless of the situation.
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