Legally Speaking: Steps to be undertaken following discovery of incapacity

Legally Speaking: Steps to be undertaken following discovery of incapacity


Here is the seventh in a series of legal columns by Quebec law firm  Joli-Cœur Lacasse Avocats.

Article aussi disponible en français

Me Maude Bureau, avocate.

Me Maude Bureau, avocate.

Author: Me Maude Bureau.

With a growing aging population, the Province of Quebec faces an increase of incapable persons. The incapacity is primarily due to mental or degenerative disease, stroke, accident or intellectual disabilities, and/or the aging of a person which alters mental or physical faculties abilities to express himself . When a close relative sees this kind of change in a loved one, he wonders what to do to protect the unable adult. At this moment the process begins to demand from the Court to homologate a mandate given in anticipation of incapacity (hereinafter “mandate in case of incapacity “) or the process of filing the application for opening a protection regime such as advisership, guardianship or tutorship.

Before beginning such a process, one has to make sure to have in hand two essential documents, those being the medical assessment stating the degree of incapacity of the adult, and a psychosocial assessment. The medical assessment will be issued by a doctor and will indicate the partial or total incapacity of the adult to manage his assets and/or person and whether the incapacity is temporary or permanent. The psychosocial assessment is performed by a social worker who will also analyze the degree of incapacity, but also the assets, liabilities, the living environment and the entourage of the incapable adult. The social worker will also recommend the type of protective supervision needed for the incompetent adult and his representative.

When the representative has both documents in hand he can then do a search with the Chambre des Notaires and the Barreau du Québec in order to verify if the adult has given, before his incapacity, a mandate in anticipation of that same inability. In order to do so, a relative can count on the services of a lawyer whose assistance throughout the process is often very useful. Where there is a mandate in case of incapacity prepared by the adult, a lawyer has to check if it meets the person’s needs for protection, meaning if the mandate provides for total or partial administration of the adult’s assets and/or his person.

Accordingly, if the mandate meets the needs of the incapable adult, the mandatary (the adult’s representative) may institute proceedings to homologate that said mandate. It is only after the homologation, a judgment confirming the mandate, that the mandatary can take actions and manage the assets of the incapable adult. During the proceedings, an interim administration may be requested from the Court.

If the mandate does not meet the needs or if there is no mandate, then the close relative will instead have to take steps for establishment of protective supervision. At this point, the close relative will be able to analyze, on the basis of the medical and psychosocial evaluations, what type of supervision is best for the incapacitated adult, but the judge hearing the proceedings will have the last say in this regard.

In general, in the Province of Quebec, tutorship and curatorship are the two most common types of supervision, tutorship being established when an adult is partially incapable and curatorship being established when an adult is totally incapable. The tutor has the simple administration of the adult’s assets, which means that his powers are more limited, while the curator has the full administration of the assets of the protected adult as well as a greater flexibility in the management of the assets.

At the establishment of protective supervision, a tutorship council will be formed among the relatives of the adult in order to supervise and assist the tutor or the curator in the management. The Court appoints the members of this council on the recommendation of a meeting of relatives, allies and friends to this effect.

In conclusion, it must be considered that any measures taken in order to establish a protective supervision or to homologate a mandate in anticipation of incapacity may take several months, even when it is not contested by the person or by the family members. Some actions can be taken in order to protect the adult during the course of those proceedings.

We invite you to contact us for any questions relating to the protection of one of your relatives, because family is important to us.

PrintBureau de Québec
1134, Grande Allée Ouest, bureau 600Bureau de Québec
1134, Grande Allée Ouest, bureau 600
Québec (Québec)  G1S 1E5
T (418) 681- 7007
F (418) 681-7100

Bureau de Trois-Rivières
25, rue des Forges, bureau 410
Trois-Rivières (Québec)  G9A 6A7
T (819) 379-4331
F (819) 379-3624

Bureau de Montréal
2001, avenue McGill College, bureau 900
Montréal (Québec)  H3A 1G1
T (514) 871-2800
F (514) 871-3933


Categories: Opinion

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Jolicoeur Lacasse Avocats

Notre cabinet qui regroupe une centaine d'avocats présents à Québec, Trois-Rivières et Montréal, est reconnu pour offrir, à des coûts avantageux, des services juridiques efficaces et efficients. Nos professionnels sont compétents, imaginatifs et désireux de vous permettre d’atteindre vos objectifs dans un environnement de partenariat et de convivialité. Ils sont en mesure d’identifier et d’anticiper vos besoins et, le moment venu, ils sauront agir de manière proactive et entamer des démarches novatrices et sécurisantes, afin de vous offrir un service adapté à votre réalité.

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