1. Homologating a Protection Mandate: the Good, the Bad, and the Ugly
By: Marcella De Piano, notary Vanessa Gregorio, lawyer

2. Introduction

3. Situation #1
I noticed a decline in my mother’s cognitive capacity. Is she incapable?
What is “incapacity”?
Cognitive incapacity vs. physical incapacity
Temporary vs. permanent
What is a protection mandate?
Formerly known as a “mandate in case of incapacity” or a “mandate given in anticipation of an incapacity”
Homologation

4. Situation #2
My mother’s doctor and social worker recommend homologating her protection mandate. I am appointed as her mandatary. What are the next steps?
The Good
Convene a family meeting
Involve the incapacitated person
Discuss the homologation process
Meet with doctor and social worker
The Bad and the Ugly
Don’t involve the incapacitated person
Disregard the incapacitated person’s wishes
Conceal information from the family
Covertly begin the homologation process

5. I signed a power of attorney. Do I need a protection mandate?
Situation #3
I signed a power of attorney. Do I need a protection mandate?
The Good
Necessary in the event of an incapacity
Useful at any age
The Bad and the Ugly
Limitation of the power of attorney
Protective supervision (curatorship or tutorship) failing a protection mandate
Vulnerability and susceptibility to financial exploitation

6. Situation #4
My spouse has predeceased me and I have children, one of whom lives abroad. Who should I appoint as my mandatary?
The Good
Your choice (examine circumstances, family dynamic, personal situation, practicality etc.)
Ability to divide the powers (mandatary to the person and to the property)
Appointment of a trust company for the administration of the property
The Bad and the Ugly
Appointing all of the children or the eldest child without factoring in the circumstances, family dynamic, personal situation, practicality, etc.
Old wounds resurfacing

7. Should I appoint replacement mandataries in my protection mandate?
Situation #5
Should I appoint replacement mandataries in my protection mandate?
The Good
Ensures the perennity of the protection mandate
The Bad and the Ugly
Application for protective supervision (tutorship or curatorship)
Establishment of a tutorship council
Annual rendering of account to the tutorship council and Public Curator of Quebec
Appointment of tutor or curator chosen during a meeting of relatives, persons connected by marriage, or friends

8. Situation #6
I customarily give gifts to my children and grandchildren for birthdays, holidays, and other major life events. Can my mandatary continue to give such gifts in the event of my incapacity?
The Good
Provisions in the protection mandate
Article 1813 Civil Code of Quebec
“A minor or a protected person of full age, even represented by his tutor or curator, may make gifts only of property of little value or customary presents, subject to the rules pertaining to marriage or civil union contracts.”
The Bad and the Ugly
If no provisions
L. (M.) c. K. (I.), (C.S., ), SOQUIJ AZ , J.E , [1997]: gift of property must be of little value and the definition of “little value” does not vary and is not proportional to the incapacitated person’s personal patrimony.
Sasseville et J.-M.G., (C.S., ), SOQUIJ AZ , J.E , [2005]: all gifts or customary presents must be paid for by the incapacitated person’s income; no encroachment of capital permitted.

9. Situation #7
I have always assisted my children when they experienced financial difficulties. Can my mandatary continue to assist them in the event of my incapacity?
The Good
Provisions in the protection mandate
The Bad and the Ugly
If no provisions, restrictions of the protection mandate
Desperation of child in financial difficulty and lengths to obtain the money

10. Situation #8
My father’s cognitive health is declining. His bills are piling up and the nursing home is threatening to kick him out. I do not have access to his account and his protection mandate has not been homologated. What can I do?
The Good
Provisional administration (safeguard order)
Article Civil Code of Quebec
“In the course of homologation proceedings or even before if a request for homologation is imminent and it is necessary to act to prevent serious injury for the mandator, the court may issue any order it considers necessary to ensure the personal protection of the mandator, his representation in the exercise of civil rights or the administration of his property.” An act under which the mandator has already charged the administration of his property to another person continues to produce its effects notwithstanding the proceedings, unless the act is revoked by the court for a serious reason.”
The Bad and the Ugly
Not involving the incapacitated person or other family members
Self-represented litigants

11. Situation #9
Does my mandatary need to render an account of his administration once the protection mandate is homologated; if so, to whom?
The Good
Provisions of the protection mandate
The Bad and the Ugly
Not involving the other family members
Perception

12. Situation #10
Who needs to be notified that my protection mandate is being homologated?
Article 404 Civil Code of Procedure
Incapacitated person
Substitute mandataries
Person designated to receive a rendering of account
Two other family members or persons who have a special interest in the incapacitated person
Public Curator of Quebec
The Bad and the Ugly
Intentionally excluding family members to avoid conflict or contestation

13. Situation #11
What do you recommend once the protection mandate has been homologated?
The Good
Family debrief
Review the judgment
Discuss the role of the mandatary and other provisions of the protection mandate
Establish a protocol for the day to day operations
The Bad and the Ugly
Misinterpretation of the judgment by the incapacitated person or other family members

14. QUESTIONS?

15. Marcella De Piano and Vanessa Gregorio are both professionals working at BCF’s Montreal office. They are members of BCF’s Wealth Protection team. Their bios and contact information are available on :

16. Homologating a Protection Mandate: the Good, the Bad, and the Ugly
Thank you
Homologating a Protection Mandate: the Good, the Bad, and the Ugly