Selling a House of an Incapable Person in Quebec – Legal Aspects
When a person in Quebec is declared incapable due to a mental or physical condition, the management of their assets, including real estate, must be handled with legal safeguards to protect their interests. The sale of a house belonging to such a person is not a simple transaction; it involves several procedural steps governed by the Civil Code of Québec to ensure the incapable person is not exploited or harmed financially.
The first legal step is determining the person’s incapacity through a medical and psychosocial assessment. This evaluation is then submitted to the Court as part of a request to institute a protection regime, such as tutorship. Only a legally appointed representative, like a tutor or mandatary, is authorized to manage the incapable person’s assets, including initiating a sale of their residence. Without this legal authority, any sale would be null and void.
Once the protection regime is in place, the tutor or mandatary must obtain authorization from the court (the Superior Court of Quebec) before selling the property. The court will evaluate whether the sale is in the best interest of the incapable person, considering factors such as their living situation, financial needs, and the fair market value of the house. This judicial oversight ensures that the incapable person’s patrimony is not diminished unnecessarily.
The tutor or mandatary must consult the tutorship council, a body composed of close relatives or friends and often a Public Curator representative. It is also preferable to obtain a consultation of a legal advisor. The council’s opinion is usually required before taking major decisions, including selling a house. This adds another layer of protection by involving people who have a personal interest in the incapable person’s well-being.
Finally, once all the approvals are obtained, the sale can proceed like a standard real estate transaction, but the deed of sale must clearly indicate that the transaction is being made under a protection regime with judicial authorization. Notaries and real estate professionals involved must be aware of these legal constraints to ensure compliance with Quebec law and the protection of the incapable individual.
Allen Madelin Avocats offer consultations both in person and via videoconference. The first consultation is offered for $125. For more information, please contact us by telephone: 1 514 904 4017 or by e-mail: [email protected].
