As opposed to a notarized Will, a Protection mandate (in case of incapacity) does not become valid automatically. A judicial confirmation procedure (homologation) is required for a designated mandatary to take over.
Steps to homologate a mandate
Once the mandator’s incapacity became evident, the designated mandatary has to arrange for a medical and psychosocial reports. For that reason a medical specialist (for example, a psychiatrist, a psycho-neurologist or a gerontologist) and a social worker should be involved.
It is also important to inform the family members an the mandator’s close circle.
Once this is done, a Court application to homologate the mandate in case of incapacity should be submitted.
As the judgment won’t be obtained without delay, a request for provisional administration is usually added, so that the judge could appoint someone for immediate help, particularly when it comes to the concerned person’s medical care and financial difficulties.
Discussions with the office of the Quebec Public Curator are possible, as his office should be informed of the Court application.
Based on the Public Curator’s representations as well as those of other interested persons (family members, friends, etc.) the judge might finally prefer to deny the Protection mandate homologation and opt for another protection regime.
But if there is no contestation or if the judge decides to follow the dispositions of the mandate, after the homologation judgment the mandatary starts acting in lieu of the concerned person when it comes to the decision-making and caretaking.
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].
