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Family may seek “protective supervision” for fragile person

December—the holiday season when family and friends meet around the Hannukah lights or Christmas tree. There is another kind of meeting, which is referred to as a meeting of family and friends. This takes place when a family member or friend is found to be “in need of protection.”

The Quebec Civil Code provides that when a person is unable to care for himself or administer his property because of impaired mental faculties, a plan of “protective supervision” may be established for him. This entails the appointment of a person to represent or assist him. This plan is intended to ensure his protection, the administration of his property and the exercise of his civil rights. It can take three forms, depending on the extent of the person’s incapacity: the appointment of an adviser, a tutor or a curator.

In cases where a person is generally able to care for himself and administer his property but may require some help for a temporary period or for certain acts, the court may name an adviser who is given the authority to intervene on behalf of the person needing assistance only in cases that are specified by the judge.

Where a person’s incapacity is partial or temporary, a tutor will be appointed to administer the person’s assets. The investments the tutor makes must be sound and of minimal risk and such immoveable property as land and buildings can only be sold with the consent of the person himself, or where he is unable to provide such consent, with the authorization of the court

When the incapacity of the person is total and permanent, a curator will be named. The curator has full power over the person’s property; he not only administers the property but has the authority to sell and mortgage it. However, as in the case of the tutor, he can only make investments that are sound. When a person has a mandate in the event of incapacity, it is not necessary to place him under protective supervision and appoint a curator, as he will have chosen his own representative, namely his mandatary.

A person himself may make an application for protective supervision, although I have never seen this happen. It may also be made by a spouse, child, close relative, friend or someone having a special interest in the person. The court will examine the application and consider medical and psychosocial reports and the opinion of those persons present at the meeting of family and friends. It will also listen to the person himself with regard to the need for protective supervision and obtain his opinion as to whom should be named his curator, tutor, or adviser.

The meeting of relatives and friends must have a minimum of five members and can consist of parents (if possible), children, other descendants, a spouse, siblings and friends. There should be representation from both sides of the family. All must be of the age of majority.

In many cases it is difficult to find five family members, especially in the case of older people. In such cases friends are invited. There are cases in which more than five people wish to attend and present their point of view. Those at the meeting will discuss whether it is necessary to open a regime of protective supervision, and if so, what form of supervision is necessary. The group then decides who will fill the role. In cases where a curator or tutor is necessary, one person (or trust company) may be chosen with regard to the person’s property, another to care for him personally.

The tutorship council gives advice and oversees the work of the curator or tutor. It is composed of three persons who must meet at least once a year as well as when its opinion is required. It is chosen from among those attending the meeting of relatives and friends. In those cases where it is truly impossible to find three people to sit on the council, the court may give permission for the council to be composed of one person.

Many find that as they age, they have more difficulty remembering things, hearing, seeing, walking or just coping with the daily routines of life. At some point, they may not be able to manage by themselves. They may need help performing everyday tasks or doing their banking, cooking or attending medical appointments. Their family and friends may become worried about them. They may have an idea as to what they want or what they need but experience difficulty in obtaining it. In spite of diminished capacity, such people still have a right to respect and a right to exercise their civil rights.

The ability to care for oneself and manage one’s affaires often decreases gradually. What is required from the law and from those around us is a balance between recognition of our autonomy as individuals and the need to protect us as we become vulnerable. The meeting of family and friends is one step in this process.

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