QC - Understanding the Legal Dimensions of Financial Literacy: Power of Attorney

Excerpt from Québec edition

What is an Incapacity Mandate?

• An incapacity mandate is a legal document that gives someone else (the mandatary) the power to make decisions about your property and personal care if you (the mandatory) become mentally incapable.
• You must be mentally capable to sign an incapacity mandate.
• You can appoint more than one person. For example, you may want one person to take care of you and another person to take care of your property.
• You can also name a substitute in case the first person you choose is unable to act for you.

Why is an Incapacity Mandate Important?

• Having an incapacity mandate means YOU choose the person who will make decisions about your care and property when you are unable to.
• The choices you express in your mandate (while capable), typically override any alternate arrangements someone may make for you.
• If you do not have an incapacity mandate, someone else could be appointed to take care of you and your property.

How Do I Make An Incapacity Mandate?

• You can write one yourself.
• You can have your incapacity mandate written by a notary or a lawyer. If you do, your mandate will be registered in Québec’s centralized Register of Mandates system that is maintained at the Chambre des notaires du Québec.

Two Kinds of Incapacity Mandates

Your incapacity mandate can be general or specific:

1) A general incapacity mandate gives your mandatary greater freedom and allows him/her to handle all of your property

on your behalf.

2) A specific incapacity mandate only allows your mandatary to deal with specific property that you have listed in writing.

• A sample incapacity mandate form is available from the Government of Québec at: https://www.quebec.ca/en/justice-and-civil-status/legal-protection/protection-mandate/drawing-up-your-protection-mandate

What Should My Incapacity Mandate Include?

• The date on which you wrote it.
• Your name and signature.
• The name of your mandatary or mandataries. A dated statement signed by two witnesses who do not benefit financially or otherwise, from the terms of the document.
• The two witnesses must certify that you are of sound mind and capable of giving an incapacity mandate.
• You may want to appoint in your incapacity mandate someone who your mandatary reports to regularly to ensure that your wishes are being followed.

Who Can Be a Witness?

Anyone who is:

• 18 or older
• Mentally capable
• Lives in Canada
• Not named in the mandate and does not have an interest in the contents of the mandate

Can an Incapacity Mandate Be Changed?

• Yes, if you are capable, you can change your mandate at any time before it goes before a Québec court.
• You can designate another mandatary or change certain clauses of your mandate.
• When changes are made to the mandate, it must again be signed by two witnesses or the notary must again be involved.

When Does an Incapacity Mandate Start and End?

A mandate can only be enforced after a court has confirmed that you are mentally incapable and gives the mandate theforce of law through homologation (see next page)

A mandate ends when:

• You die
• You pass both a medical and psychosocial exam that declares you capable
• Your mandatary dies and you do not have a second mandatary. In this case, the government may appoint the Public Curator’s office to take over your affairs.

What is Homologation?

• A legal procedure where the court confirms that you are mentally incapable and enforces your incapacity mandate.
• Your mandatary must apply to the court in your legal district for homologation.
• The court will verify that you have an incapacity mandate, and that it is valid.
• When the court has your medical and psychosocial records, they will make a decision to have your mandate enforced. This means your mandatary can now make decisions for you.

How Much Does an Incapacity Mandate Cost?

• Your mandatary is entitled to be paid for out of pocket expenses.
• In principle, the work of the mandatary is expected to be free of charge.
• If you want your mandatary to be paid, you must say so in writing.

What Does “Mentally Incapable” Mean?

• You cannot understand the information needed to make a decision about your care or property and you do not understand the results of your decisions.

Who Will Decide That I Am “Mentally Incapable”?

• The person you name as your mandatary.
• If your mandatary believes that you are mentally incapable, they must apply to have your medical and psychosocial assessments done.
• These assessments must be conducted by a registered health or social service professional.
• After you are assessed, homologation begins.

What If I Regain My Capacity?

• If you regain your capacity, you can take steps to cancel or revoke your mandate.
• Your mandatary or a family member or friend, can also do this.
• Your incapacity mandate can also be canceled by the director general of a health and social services institution.
• You must obtain new medical and psychosocial assessments.
• These assessments are sent to the court. If the application is not contested within 30 days, your mandate will be automatically revoked.
• The court will give notice in writing that the mandate has ended (revocation) and will give copies to you, your mandatary, and the Public Curator’s office.

Tips:

• You should discuss your needs with the mandatary you choose BEFORE you sign a legal document. Make sure they understand your needs and will act on your behalf.
• It is VERY important to choose someone you trust, who will carry out your wishes.
• You should designate a substitute mandatary in case your first mandatary cannot act for you.
• Keep the document in a safe place that your mandatary knows about.

What Happens If My Mandatary Steals From Me or Misuses My Money?

• The public curator’s office has the power to intervene, investigate and protect you.
• Anyone who knows of or suspects abusive treatment can contact the Public Curator’s Office and file a confidential report (see the Preventing and Intervening in Situations of Financial Abuse pocket tool).

What Is The Difference Between a Will, Living Will, Incapacity Mandate, and a Power of Attorney?

What is a Will?

• A will contains your wishes about your property after your death.
• It only takes effect after your death. A power of attorney and an incapacity mandate can be used only during your lifetime.

What is a Living Will?

• A document that details your wishes regarding your medical care if you become seriously ill or incapacitated and are unable to state your wishes.
• It may indicate the types of treatment you do or do not want to receive.
• You may want to create your Living Will with the assistance of a notary.

What is a Power of Attorney (POA)?

• A document that allows you to name someone (called a mandatary) in writing or verbally, to act on your behalf for legal matters or issues relating to your property.
• A mandatary for a Power of Attorney is not the same as a mandatary for an incapacity mandate. Your mandatary for a
• Power of Attorney only deals with your property.
• Typically, a power of attorney is not valid as soon as you are no longer able to supervise it due to mental incapacity.

Two Types of POA

Your POA can be:

1. A General Power of Attorney allows your mandatary to act on your behalf for administrative tasks, such as paying your bills, but does not provide your mandatary with the power to sell your assets unless you have explicitly given him or her permission to handle all of your affairs.
2. A Special Power of Attorney allows your mandatary to act on your behalf for one specific task that is explicitly expressed by you, such as selling your home or car.

How Do I Make a Power of Attorney?

• You may draft one by yourself or with the help of a lawyer or notary as long as you are mentally capable.
• No witnesses are required because you are required to supervise the activities of your mandatary.

When Does a Power of Attorney End?

• When the obligations of the Power of Attorney are complete or cannot be performed.
• If you become mentally incapable and can no longer supervise the execution of your power of attorney.
• If you or your mandatary dies, goes bankrupt, or is declared mentally incapable.
• If your mandatary resigns.
• If your power of attorney was not written by a notary, you can cancel it at any time.

Where can I get more information?

Contact the Public Curator’s Office at 514-873-4074 or 1-800-363-9020 (toll-free) or visit their website at: www.curateur.gouv.qc.ca