A protection mandate (also known as a mandate in case of incapacity) usually presents itself as a part of a general Power of Attorney. The idea is to allow the mandatary same (or greater, or less) powers if the mandator becomes legally incapable.
In view of incapacity, a regular Power of Attorney lapses. And as the person is no longer capable of exercising his legal rights, he obviously cannot sign a protection mandate at that point. Hence the idea of preparing such a document in advance.
While still intellectually and psychologically strong, a person determines who will be exercising the rights in his name (and to what extent) when and if the person could not do it any more on his own.
Why talking about contesting a protection mandate?
So, if someone already decided well in advance whom to trust the care of himself and administration of his property, why would anybody contest? There may be many reasons. Some are similar to Will (Testament) contestations. One can pretend that the mandator was already weak in spirit, did not understand what he was signing or the consequences. One can bring up allegations that the mandator signed under duress, being vulnerable and scared. Also, there might be a question of financial fraud, etc.
Yet, there is one huge difference between a protection mandate and a Will. Protection mandate concerns a living person. And that person might disagree about the level of his (her) disability. Therefore, such a person can him(her)self contest the application to enable (homologate) his protection mandate in Court.
Finally, friends and relatives of the concerned person, seeing something wrong happening (like physical, psychological or financial abuse on the part of the mandatary) can go to the Court (even if the mandate was already enabled), arguing that the concerned person’s wellbeing requires a change of the protection regime and the person in charge.
Allen Madelin Lawyers work regularly with cases involving protection mandates, protection regime, tutorship and administration of property. For details, please contact us by phone: 1 514 904 4017 or by email: [email protected].
