A guarantee that
your wishes ill be respected
It can happen to anyone.
The prospect of losing the ability to decide for oneself is
not a pleasant one. Yet, none of us can be sure of being spared
a serious accident or disease which might deprive us of our
If such an unfortunate even occurred who would look after
you and your property or assets?
It is difficult for independent, lucid and healthy people
to imagine that one day they might be incapable of such routine
tasks as making out a rent cheque, doing their shopping or
making a dentist's appointment.
In general, the court decides who is to look after the psychological
and physical well-being of an incapacitated person. Usually,
after some discussion, a tutorship council, that is, a group
made up of relatives and sometimes friends, recommends that
a particular person he appointed. The court is not, however,
obliged to follow this recommendation.
The court also determines the appropriate degree of protection
depending on the needs of the person in question : adviser
to a person of full age, tutor to a person of full age, or
Do you know whom the court would appoint to assist or represent
you? Wouldn't you rather decide for yourself?
The mandate in anticipation
of possible incapacity
Fortunately, people nowadays may themselves determine who
will take care of them and their property, should they become
The law allows any person of sound mind, the mandator, to
appoint, in a document called the mandate, the person who
will ensure his or her well-being and the administration of
his or her property or assets in case of incapacity. The person
entrusted with this task is known as the mandatary.
It is a great relief to know that a trustworthy, freely chosen
person such as one's own spouse, brother, sister or close
friend, will then be legally empowered to make vital decisions.
What is the procedure?
To be truly effective, the mandate must be as complete and
unambiguous as possible, give wide-ranging power to the mandatary
and provide for the latter's replacement. If you wish, you
may even choose two different persons, one to ensure your
well-being and the other to take care of your property. The
mandate may even include certain "living will" provisions
as well as others to ensure the gift of bodily organs, etc.
The mandate should be drawn up before a notary. This enables
the mandator to obtain complete information and advice from
a legal authority concerning the usefulness and consequences
of a mandate, when and how it comes into force, etc. The mandate
may also take the form of a simple contract, signed before
two disinterested witnesses.
However, a notarial mandate provides greater security because
it is difficult to contest. The notary also ensures that the
person who signs the mandate has understood its scope and
significance and that at the time of signing, when he or she
is in full command of his or her faculties. Mandators and
mandataries may obtain as many copies as they need since the
original is kept for safekeeping by the notary who witnessed
The mandate register: for better protection
Quebec notaries have access to a centralized registration
system to ensure that all mandates may be easily traced. Once
you have signed your mandate before a notary, he or she will
see that it is entered in the Register of Mandates kept by
the Chambre des notaires.
Designed and created on the model of the Register of Wills
to ensure respect for your wishes, this system offers the
- locating any notarial mandate;
- identifying your last notarial mandate;
- eliminating the risk of a mandate being disregarded or
traced belatedly, in the event of incapacity
What Happens if you change your
In time, situations change. The person chosen while the mandator
was a young adult may not be considered suitable in later
years. It is comforting to know that a mandate may be revoked
and a new mandatary selected at any time
Execution of the mandate
If you become incapacitated, your mandatary must apply to
the court for the mandate to become effective.
This application consists in presenting the court with evidence
of your incapacity by means of a medical, psychological and
social assessment, and establishing that your consent to the
mandate is valid. As soon as the mandate has been homologated
by the court, the mandatary becomes your legal protector and
Duties of the mandatary
The mandatary takes on very important duties and responsibilities,
which may include giving or withholding consent to health-care
procedures and medical treatment.
He or she may :
He or she will also administer your property,
- accept or refuse the administration
of a particular treatment;
- accept or refuse surgery;
- looking after your investments;
- paying your bills;
- collecting your income;
- filling out your tax returns;
He or she must also look after your physical
The mandatary may not resign until a satisfactory
replacement has been found and he must also render an account
of his administration if the mandate so stipulates
- buying your clothes;
- seeing to your recreational activities;
New lifestyles, the emergence of reconstituted families,
longer life expectancy, and the estrangement of family members
are some of the arguments in favour of making the choice of
a mandatary before entering your senior years.
the opportunity presents advantages for everyone, those who
stand to benefit the most are:
Do not delay : the mandate is your guarantee
of peace of mind.
- common-law spouses;
- couples separated but not legally
- people who have little or no contact
with other members of their families;
- people engaged in business;