What happens if a protection mandate is incomplete in Quebec?
In Quebec, a protection mandate — formerly known as a “mandate in case of incapacity” — is a legal document that allows a person (the mandator) to appoint someone (the mandatary) to take care of their personal and financial affairs if they become incapable. However, when such a mandate is incomplete — meaning it lacks essential information, is ambiguous, or fails to cover key aspects of the mandator’s life — this can lead to significant legal and practical complications.
An incomplete protection mandate may not be homologated by the court. Homologation is the legal process required for the mandate to become effective once the mandator is declared incapable. If the document does not meet the necessary legal requirements or fails to clearly express the mandator’s wishes, the court may refuse to approve it. This delay can cause hardship for loved ones who need to act quickly to manage the affairs of the person concerned.
In such cases, the court may instead initiate proceedings for the opening of a tutorship (formerly called “curatorship”), which is a more rigid and publicly supervised form of protection. This process can be longer, more complex, and more intrusive. Family members may also disagree on who should act as tutor, further delaying decision-making.
Moreover, if the protection mandate omits provisions about healthcare decisions, living arrangements, or the management of certain assets, the mandatary may lack the authority to act. This can result in the need for additional court interventions or even the appointment of a temporary representative for those specific issues. In the meantime, the mandator’s needs may go not met, and their affairs may remain not managed.
To avoid these outcomes, it is crucial to ensure that a protection mandate is drafted with clarity, completeness, and legal accuracy. Ideally, it should be prepared with the assistance of a notary or legal professional who can help identify and cover all relevant areas. A well-prepared mandate ensures that the mandator’s wishes are respected and provides peace of mind for both them and their loved ones.
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].
