In the best interest of an incapacitated person, the Superior Court can always proceed with the establishment of a protective regime (appointment of a curator or guardian) rather than approving a protection mandate.
The Civil Code allows, in anticipation of incapacity, to designate a mandatary who will take care of both the person and the assets. In the presence of such documents, it frequently happens that certain close relatives, disagreeing with the choice and powers granted to the mandatary, oppose the homologation of the protective mandate and sometimes even challenge the degree of incapacity of the incapable person.
Thus, following a judgment rendered on appeal*, the Court reiterates the mandatory nature of the questioning of the mandator before declaring them incapable and rules that the questioning is not "a mere formality, but a fundamental procedural safeguard linked to respect for the dignity of the person."
In a mandate, it is possible to provide that the mandatary exercises their mandate even if the mandator is only partially incapable. The mandator can even establish certain specific rules, such as exempting the mandatary from having to account for their actions. The court cannot, under any circumstances, go against the will of the mandator by ordering the mandatary to provide an account, for example.
However, in case of opposition or disagreement among relatives, and if it is in the best interest of the mandator, the Court reminds that it is always possible to proceed with the opening of a protective regime (appointment of a curator or tutor) rather than homologating the protective mandate.
One thing is certain, in case of conflict, the court will ensure the interest of the mandator rather than that of the mandatary or the relatives.
*C.A. 500-09-022497-127
