Being completely incapable or not being completely incapable, that is the question that will now be raised for those who will have to decide if their assets, and themselves, should be administered under a mandate in case of incapacity or a guardianship chosen by the court.
More than twenty years ago, the Quebec legislator innovated by developing the concept of a mandate in the event of the mandator's incapacity. What can now be the extent of the mandate in case of incapacity?
Thus, a millionaire widow, about six years after signing a mandate in case of incapacity, is notified of a request to enforce this mandate. The evidence shows that this lady is only partially incapable, suffering from "mild Alzheimer's disease" and "although retaining part of her capacity, she is unable to take care of herself or manage her property within the meaning of the law." However, the mandate does not provide for any power to be conferred on the mandatary in the event of partial incapacity of the mandator.
The Court* rules that the expressed will at the time of drafting the mandate in case of incapacity must be respected. Thus, if a mandate in case of incapacity does not provide for enforcement in the presence of partial incapacity, a court would go against the will of the mandator by approving such a mandate. "The approval would be disproportionate" in the context of partial incapacity.
The court concludes that "the scope of the mandate is too broad given the mandator's degree of incapacity" and refuses to approve the mandate, considering that it would be more appropriate, under the circumstances, to request the opening of a protective regime.
Therefore, as a drafter or signatory of a mandate in case of incapacity, it is now necessary to question whether one wishes the mandate to apply even if the incapacity were to be partial.
To be completely incapacitated or not to be completely incapacitated, that is the question that will now arise for those who will have to decide whether their property and their person should be administered under a mandate in case of incapacity or under a protective regime chosen by the court.
*500-09-018783-084 (C.A.)
