MANDATE IN CASE OF INCAPACITY

When a Nightmare Replaces the Dream

A recently-divorced mother of two young children, Susie Jones had only a Caribbean vacation on her mind. Her friend and travel companion, John Smith, remarks that Susie had been talking about it for a long time. However, just one day after having set foot in the Bahamas, all of Susie’s plans went awry after she suffered a terrible head injury. She was able to return to Quebec after 14 days in a Bahamian hospital but, unfortunately, she lost all of her intellectual capacities. To make matters worse, Susie, then in her early forties, had never left any written instructions to aid her loved ones in any decision making regarding this type of circumstance. Due to this unexpected turn of events, the two children were sent off to live with their father. However, unpaid bills have been piling up and no one had the power to address the situation. Furthermore, Susie was to need long-term care and decisions would have to be made. John sniffles: “It breaks my heart because we don’t really know what Susie’s wishes could have been.”

Mandate in Case of Incapacity

The above-mentioned situation could have been brought totally under control for Susie’s loved ones. There is a mandate called “mandate in case of incapacity” or a “mandate for the protection of persons of full age” and such a mandate could have allayed the fears brought about by the lack of protection as well relayed Susie’s wishes to everyone.

Any questions vis-à-vis the administration of assets, as well as the protection of loved ones, including children, can be answered by a well-composed mandate. The wishes of the incapacitated individual are summed up within and one or more designated persons are assigned to carry out the essential decisions.

In the event of incapacity, a mandate, just like a will, is adapted to each individual’s situation.

For example, it has the power to authorize a designated person to meet bill payments, administer bank accounts and if necessary, to refinance a home. That same home could be sold, or to the contrary, blocked from being sold. The administration of the assets is directed by the provisions in the mandate.

Those provisions also cover the wellbeing of the person. It will respond to those questions concerning consent to care; for instance: will the individual in question wish to be resuscitated or will he or she refuse all care? The mandate also includes the instructions regarding housing and long-term care.

The mandate can allow for the wishes of the person to be placed in a private care facility or simply to be cared for at home. The more concise the instructions are, the simpler it will become for all those involved to handle the complex issues when and if the need should arise. This is called “protection of the person.”

Targeting those cases in which children are affected, such as in Susie’s case, it is imperative for a clause to be added to the mandate to protect loved ones. This very clause can liberate an individual’s assets to be used to assist in providing for the children’s needs, such as food, apparel, supplies for school, etc. An additional clause called “child guardianship” would provide for a certain person to be responsible for the children should the other parent be unable to care for them.

Other exceptional clauses can be added in as needed. For instance, in the case of managing a business, it is certainly much more challenging than simply taking care of personal assets and keeping bill payments up-to-date. When someone actually manages an enterprise, there must be a plan as to who could take over in the event of the owner being absent unexpectedly. This need must not be ignored, not only because a company is the source of income for the owner, but also because there are usually workers involved as well.

Dividing the Responsibilities

Nevertheless, relinquishing this sort of responsibility is tantamount to placing one’s life in the hands of others. It is definitely not an easy decision, for the element of trust must be present and one must be completely positive that all decisions will be made in one’s best interest. In order to lessen the burden, several people can share the responsibilities. One relative could be placed in charge of the assets and another could be responsible for the protection of that person or the loved ones. A control clause should be added stipulating that a report should be submitted once or twice a year to the loved ones. It could go as far as stipulating that it will be necessary for one person to be responsible for supervising the work of the mandatary. What’s more, withdrawal limits should be placed on bank accounts in order to avoid abuses, thus maintaining harmony within the family.

Moreover, there should be another provision calling for the replacement of the original mandatary should the situation arise that said mandatary is no longer able or willing to undertake the duties assigned to them. Indeed, there have been cases where the mandatary had been dealing with serious health issues or had other personal issues deemed incompatible with the responsibilities of a mandatary. This possibility must be taken into account and incorporated into the mandate.

A Procedure to Be Followed

And an incapacity mandate, its thoroughness notwithstanding, does not spring into action right after an accident.

The mandate in case of incapacity has its full force and effect only after it is homologated by the courts. The procedure that is carried out and follows is described below:

Firstly, certain medical and psychosocial assessments must be carried out initially to ascertain that the person is genuinely unable to care for himself or herself, as well as to manage his or her assets.

Two (2) written reports need to be documented and filed before the court.

Once the two (2) reports have been documented, a lawyer drafts a motion to homologate the mandate in case of incapacity along with the two (2) medical assessment reports describing the situation at hand, which shall be filed before a judge or a clerk of the court who, in turn, will make a decision as to the capacity or incapacity of the person.

Thirdly, the person in question will be interviewed by the clerk of the court in order to ensure the incapacity of mental faculties

This court judgment is crucial in order for the mandate in case of incapacity or the mandate for the protection of the person to have legal effect. For all the steps in the process to be completed, it could take several months.

However, the court can order temporary administration in dealing with immediate and urgent matters such as allowing the mandatary to comply with bill payments and fulfill other needs pertaining to the children.

Tutorship/Curatorship

In Susie’s case, the only situation admissible is the request for temporary administration. Her loved ones are faced with having only one option, which is to request the institution of protective supervision, meaning a tutorship if her incapacity is temporary or partial, but a curatorship if her incapacity should be declared total or permanent.

In Susie’s situation: Susie’s loved ones must get together to name a representative and create a three-person council who will oversee the work of that very same representative. These choices will then be ratified by the court.

Conclusion

It is a common fallacy that only elderly people require a mandate in case of incapacity. The protection offered by a mandate in case of incapacity is all the more beneficial for the younger generation or a more active person, especially if children and workers are involved similar to Susie`s situation.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.