The type of mandate presented here authorizes a person to carry out everyday administrative tasks on behalf of another person – for example: to sign a contract to sell a building. In other words, the mandate concerns only the administration of property. It is commonly known in English as a “power of attorney”.
If you become incapable, the mandataries will need to open a file to the Quebec Superior Court to homologate the protection mandate. ... After the homologation, the power of attorney falls, are not good anymore, and the protective mandate will apply, with all the details you put in it. It’s a good idea to seek legal advice to ensure that what ...
A power of attorney applies only to property, whereas a mandate can also apply to protection of the person. When you draw up a power of attorney, you authorize someone else to perform various day to day administrative steps (paying bills, withdrawing money from a bank account) or other, more extensive transactions. The document may be notarized.
The protection mandate allows you to maintain control over your life. For instance, you can indicate your preferences concerning where you will live and end-of-life health care. The protection mandate allows you to protect your loved ones and save them a lot of trouble. For example, you can authorize your mandatary to use your assets to support ...
the duration of the power of attorney (for example, six months; until a certain date) the deadline for carrying out certain duties. the date and place of signature of the power of attorney. your signature and the mandatary's signature.
A power of attorney is defined in the Civil Code of Quebec as a contract by which a person, the principal, confers on another person, the attorney, the power to represent the principal in the performance of a legal act with a third person, and the attorney, by accepting, is bound to exercising that power.
The Civil Code of Quebec doesn't require a certain form for the power of attorney: it can be notarized or signed in the presence of witnesses or it can simply be signed by the mandator/principal in the form of a letter, for instance. The notarized power of attorney is without a doubt the preferred form.
A mandator may revoke a power of attorney at any time. It is important to note that, even if the term of the mandate is indicated in a power of attorney, a mandator may revoke a power of attorney before the end of its term. We suggest that you consult your notary to make a notarized revocation.
To be valid, the protection mandate must be signed by two witnesses, who must confirm that the mandator was mentally adept at the time of signing. The witnesses cannot be people who will benefit from the mandate, nor can they be named as mandataries.
A power of attorney applies only to property, whereas a mandate can also apply to protection of the person. The power of attorney takes effect when the mandator so decides he may terminate it at any time.
A mandate is an official document in which you, as an adult in full possession of your faculties, designate someone or several people to look after you or your property in the event that you become temporarily or permanently incapable of doing so yourself. The Civil Code of Québec calls these individuals mandataries.
Documents that are valid outside of Ontario will be valid if they complied with the law of the jurisdiction in which they were signed, or the law in which the grantor was living. In Quebec, the Civil Code recognizes Powers of Attorney for Healthcare and for Finances, which are called Mandates.
Power of attorney could be irrevocable or revocable and 'general' if it is made generally for certain acts, for eg, representation before the income-tax department. Further, your power of attorney could be irrevocable or revocable," says Bhakta. Also, your power of attorney may or may not require registration.
An ordinary power of attorney (OPA) is a legal document in which someone (the donor) gives another person (the attorney) the right to help them make decisions, or take decisions on their behalf. It can also be called a general power of attorney. An OPA can only be used if the donor has mental capacity.
A power of attorney is a legal document that you sign to give one person, or more than one person, the authority to manage your money and property on your behalf. In most of Canada, the person you appoint is called an “attorney.” That person does not need to be a lawyer.
In the United States, the terms lawyer and attorney are often used interchangeably. For this reason, people in and out of the legal field often ask, “is an attorney and a lawyer the same thing?”. In colloquial speech, the specific requirements necessary to be considered a lawyer vs attorney aren't always considered.
In case of incapacity, what to do? In Quebec, once a person becomes incapable (physically or mentally), legal proceedings must be undertaken to legally declare the person incapable and appoint a person to look after his or her personal health, and to manage his or her assets. If the person concerned does not have a protection mandate (also known as “incapacity mandate”), his or her family members or interested parties must contact the Quebec Superior Court to open a regime of protective supervision. The court may establish a curatorship, a tutorship, or may appoint an advisor.
If you become incapacitated, the persons named in the power of attorney can manage your assets on the condition that an application has been filed to homologate your protection mandate.
You can avoid a nasty situation by signing a protection mandate.
Homologating a protection mandate is preferable to establishing a regime of protective supervision for at least two reasons.
A power of attorney alone is not enough for incapacity planning. Your attorney cannot on the sole basis of a power of attorney manage your assets while you are incapacitated; you must have a protection mandate that is in the process of being homologated by the court. After the homologation, the power of attorney falls, are not good anymore, and the protective mandate will apply, with all the details you put in it. It’s a good idea to seek legal advice to ensure that what you decide is appropriate for your circumstances.
A power of attorney applies only to property, whereas a mandate can also apply to protection of the person. When you draw up a power of attorney, you authorize someone else to perform various day to day administrative steps (paying bills, withdrawing money from a bank account) or other, more extensive transactions.
The power of attorney takes effect as soon as you decide and you may terminate it at any time. Basically it becomes invalid when you are no longer able to oversee the actions of the person you authorized to act on your behalf, or when the court has declared you incapacitated.
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The protection mandate allows you to maintain control over your life. For instance, you can indicate your preferences concerning where you will live and end-of-life health care. The protection mandate allows you to protect your loved ones and save them a lot of trouble.
Incapacity does not discriminate on the basis of age, sex or ethnic origin. Even in the prime of life, no one is safe from an unpleasant surprise. Incapacity does not necessarily give warning signs. You could lose your mental ability due to an accident, stroke, or illness.
A solution for filling the gap of a protection mandate is to sign a power of attorney and a protection mandate at the same of time. The power of attorney, which will take as soon as you sign it, gives one or several persons (referred to as “agents”) the authority to make financial decisions on your behalf. If you become incapacitated, the persons named in the power of attorney can manage your assets on the condition that an application has been filed to homologate your protection mandate.
In addition, an incapable person is no longer able to care for his or her personal health. This entails incapacity to consent to medical care.
A protection mandate is a document whereby you appoint one or several persons to look after your personal health and to manage your assets should you become incapable. The designated individuals are referred to as “mandataries”. This document can only be signed whilst you are alive and capable. If you become incapable, the mandataries will need to file an application to the Quebec Superior Court to homologate the protection mandate.
Incapacity is the absence of the physical or mental faculties that are necessary to exercise civil and legal rights. A person who has been declared incapable by a court no longer has the legal capacity to administer his or her property. He or she can no longer rent, purchase or sell property, manage assets and investments, execute a last will and testament, make gifts or take any other estate planning action.
We emphasize that a power of attorney alone is not sufficient for incapacity planning. Your agents cannot on the sole basis of a power of attorney manage your assets while you are incapacitated; you must have a protection mandate that is in the process of being homologated by the court.
The time and the cost associated with opening a regime of protective supervision and the Public Curator’s involvement in the process can be daunting. They can, however, be avoided by signing a protection mandate.
Homologating a protection mandate is preferable to establishing a regime of protective supervision for two reasons. First, you choose in advance who will look after your personal care and manage your assets should be you become incapable. You do not have this guarantee if a regime of protective supervision is established.
A protection mandate ( mandat de protection) allows the attorney to act on behalf of the principal if the principal is incapacitated. A protection mandate comes into force only when the principal becomes unfit and provided it has been activated or homologated by a court at the request of the attorney named in the protection mandate. A protection mandate must be made by a notarial act en minute or in the presence of witnesses. According to the Civil Code of Quebec, a protection mandate may be for acts intended “to ensure the personal protection of the mandator, the administration, in whole or in part, of his patrimony and, generally, his moral and material well-being, should he become incapable of taking care of himself or administering his property” (s. 2131, Civil Code of Quebec ).
A power of attorney (also called a mandate in Quebec) allows a person (the attorney, also called the mandatary in Quebec) to make financial decisions on behalf of another person (the principal, also called the mandator in Quebec). While a will designates an executor (also called a liquidator in Quebec) to administer the estate of a deceased person, a power of attorney grants decision-making authority to the attorney while the principal is still alive. And just like a will, a power of attorney is an important part of a comprehensive financial plan. Yet powers of attorney are often less understood than wills, so it’s worth looking more closely at how they work.
Attorneys are legally obligated to act with prudence and diligence. They must also act honestly and faithfully, in the best interest of the principal at all times. They must avoid conflicts of interest. They may be held responsible for any failure to perform their duties. The principal should indicate their financial preferences and wishes. The better an attorney understands how the principal currently manages his or her money, the better the attorney will be able to complement the principal’s approach.
If there’s no one who can adequately perform the responsibilities of an attorney or if the principal’s financial situation is complicated, the principal has the option of appointing a financial or legal professional, though the professional’s services are likely to be fee based. As well, a family member or friend acting as attorney could be paid or be eligible for compensation for this role.
Keep in mind that appointing more than one attorney can work well, but it can also lead to disputes that affect the smooth management of the principal’s finances. However, having two or more attorneys acting jointly could reduce the risk of fraudulent activities. It’s prudent to appoint a successor or alternate attorney who can step in if your first attorney is no longer able or willing to fulfill the attorney’s duties.
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The commentary in this publication is for general information only and should not be considered investment or tax advice to any party. Individuals should seek the advice of professionals to ensure that any action taken with respect to this information is appropriate to their specific situation.
In addition to the medical assessment, you’ll need to obtain a psychosocial assessment confirming that the person is incapacitated. A social worker does this assessment. You can ask the person’s health-care facility (for example, a CHSLD) to perform the assessment free of charge.
You should discuss things with the incapacitated person, if possible, to find out if they agree with having the protection mandate homologated. The person’s opinion is important, even if their mental or physical abilities have been reduced.
For example, they might oppose it if they feel you’re not the best person to represent the incapacitated person.
You’ll need a medical assessment confirming that the person is incapacitated. You can ask the person’s family doctor to complete the assessment free of charge. You can also ask the person’s health-care facility (for example, a CHSLD) to do it for free.
If you’ve prepared advance medical directives and you are in one of the situations in which they apply, they will take priority over your protection mandate.
You can change your mind and update your protection mandate if you are not incapacitated. You must update it in one of the two possible ways of making one: by a notary or in front of two witnesses. Or, you can make a completely new one.
Anyone who has an interest in protecting you can easily check whether you have a notarized mandate by submitting a search request to the Register of Protection Mandates of the Chambre des notaires. All notaries must transmit certain information to the Registrar on the mandates they keep. This register is intended to record the existence of notarized mandates in Quebec and therefore does not contain copies of the mandates.
To be valid, the protection mandate can be made before a notary or two witnesses.
Your notary will inform you of the various elements that can be included in your mandate and will advise you according to your situation , taking into account, for example, the presence of young children, a sick or disabled spouse or certain property located abroad.
Unlike these, the protection mandate allows each person to choose who will manage their assets and how, and help with personal decisions in the event of incapacity. But there are other good reasons to have a protection mandate: Minimizing the Public Curator’s involvement. Making decisions in advance:
As legal professionals in family law, notaries can be precious allies. They will analyze your situation and advise you on how to protect your interests and those of your family in the event that you become incapable.
Previously known as the “mandate given in anticipation of incapacity,” a protection mandate is a document that allows you to determine the management and/or protection of your property in advance in case you are ever declared incapable. It also covers decisions about personal protection, such as medical care, accommodation and spiritual guidance.
It is often relatives (child, spouse, brother, sister, etc.) who are appointed as mandatary. If this is not possible, a professional may act as mandatary, as it is not necessary that the mandatary be related to the mandator. If the situation requires it, an institution may be appointed mandatary, but only to manage your property, such as a trust company. Your notary will be in the best position to guide you and help you choose the mandatary.