Wouldn't it be appropriate, in a mandate in the event of incapacity, to grant the mandatary the power to transfer funds to their loved ones? Without such provision, the mandatary will not be able to allocate any assets they administer for the benefit of the loved ones of the incapacitated person.
In Quebec, financial planning today must include a mandate for incapacity planning. Over the years, the drafting of a mandate has become more sophisticated with the addition of customized clauses to better reflect each person's wishes.
Thus, a doctor, after signing a protection mandate, modifies it and adds a clause stating that his partner will receive $200 per week until his death if his personal condition prevents him from providing for himself (this modification will later be changed to increase the amount to $300). Although the mandate and its modifications have been approved, the mandatary, the doctor's daughter, refuses to make weekly payments to the partner. The mandatary argues that the modification constitutes a donation of future assets which "can only be made in a will or marriage contract."
The Court concludes that this is not a donation of future assets, but "essentially an unnamed contract." Although the doctor and his partner were never common-law partners, this did "not prevent the doctor from acknowledging a natural obligation towards the woman he has been with for more than 30 years." The judge therefore orders the mandatary to make weekly payments to the partner as provided for in the mandate.
Would it not be appropriate, in a mandate for incapacity planning, to grant the mandatary the power to make payments to his/her loved ones? Without such provision, the mandatary will not be able to allocate assets administered by him/her for the benefit of the loved ones of the incapacitated person. Even though many say they are richer when dead than alive, it would not be right for the loved ones to live in need if a person becomes incapacitated, until death occurs, due to the lack of a mandate or the deficient drafting of an existing one.
*CS 500-14020274-31, 2004-10-13
