A mandate is a contract by which a person, the mandator, gives power to another person, the mandatary, to represent him. This contract is called a power of attorney.
In Quebec there is a special kind of mandate called a mandate in the event of incapacity.
For many years we have been encouraging people to make such a mandate. By doing so, they can name someone to care for them and/or administer their property should they become incapable of doing so themselves. To take effect, the mandate must be “homologated” by the court. This is done by petitioning the court and providing proof of incapacity.
The court will examine the mandate to make sure it has been prepared in the correct form and it will study the professional reports, which have been submitted to establish the incapacity.
The court has the right and the duty to issue any order it may deem necessary to ensure the personal protection of the mandator, as well as his representation in the exercise of his civil rights and the administration of his property. In cases where incapacity exists but there is no mandate, the person lacking capacity may be declared in need of protective supervision and a curator, tutor or adviser will be appointed by the court depending on the needs of the person involved.
In most cases, people name their spouse and/or children as their mandataries. Similarly, in cases of protective supervision those same people are usually named as the designated representatives by the court after considering the advice of family and friends. Not infrequently there is disagreement between family members as to how a person is to be protected or his property administered. In such cases, the court may refuse to homologate a mandate and instead appoint the Public Curator to fulfill the position of protector.
It is therefore very important that you discuss your wishes with those you want to represent and protect you in the event of your incapacity. It is also important that you make sure that those you name in your mandate agree about how your assets are to be administered and what measures are to be taken with regard to your personal care and living arrangements if ever you become incapable of making such decisions yourself. Here are some recent true-life situations that had to be resolved by the courts.
1. A woman named her daughter as her mandatary. A few years later she revoked her mandate and wrote a second one in which she named both her daughter and her son as her joint mandataries. She was subsequently declared incapable of caring for herself or managing her affairs. The daughter applied to the court to have the second mandate declared invalid on the grounds that her mother was the victim of undue influence on the part of her brother. Her brother applied to the court to homologate the second mandate or to place his mother under protective supervision. The court found that the second mandate was valid but refused to homologate it on the grounds that it would be contrary to the mother’s interests to do so, in view of the animosity between the siblings. The mother was declared in need of protective supervision for both her person and her property and the Public Curator was named to represent her instead of either of her two children.
2. The son of a woman with Alzheimer’s applied to the court to declare his mother in need of protective supervision. He asked to be named her curator but his siblings objected and they could not agree on who should fulfill the position. Because of the conflict among the children, the court was concerned that if one of them was named, he might make it difficult for the others to have access to their mother. As a result, the Public Curator was appointed so as to ensure that the woman would be able to have contact with all her children.
3. The daughter of a woman with Alzheimer’s petitioned the court to homologate the mandate of her mother. The mandate was found to be valid but the court refused to homologate it on the basis of evidence that the Petitioner was not involving herself in the care of her mother. She constantly argued with the staff at the residence in which her mother lived and she prevented her sister from visiting their mother. The court opened a regime of protection and, because of the animosity between the sisters, appointed the Public Curator as curator to both the assets and person of the mother.
Many similar situations arise and the courts are frequently called upon to make decisions in order to assure the protection of those unable to protect themselves. Money and sibling rivalry can be an explosive combination. So when you make a mandate in the event of incapacity, consider carefully who it is you want to protect you and discuss your wishes with those who have a genuine interest in your wellbeing.