Signing a protection mandate is considered a legal must

Signing a mandate of protection is equivalent, when it is approved, to handing over the steering wheel of your destiny to a third party. The choice of your designated driver deserves thorough consideration.

After a few decades of existence, signing a mandate in case of incapacity, for a resident of Quebec, can be considered a legal must. But what are the implications for the person who agrees to act as the designated mandatary for such a mandate?

Under an order for the homologation of Madame X's mandate, issued by the Court supérieure, the appointed mandatary is also ordered to entrust the sale of a property to a real estate agent and to provide a report on the evolution of the assets "every four months" to Madame X's nephew.

Nine years pass, and Madame X passes away. In the meantime, the mandatary has neglected to submit the prescribed report every four months and has sold the property described in the order, without a real estate agent, and nearly $100,000 below the recognized evaluation. The deceased's heirs turn to the Court to claim over $300,000 from the mandatary. The evidence shows that the value of the assets has decreased by $150,000 over nine years.

Under the Civil Code, a mandatary acting free of charge "is not subject to a standard of excellence; their conduct is assessed based on what a reasonable person would do in the same circumstances." The Court* concludes that, although the conduct of the mandatary cannot be described as fraudulent, she acted with "negligence" and "chronic carelessness" and "jeopardized" the assets of the estate. The Court therefore orders her to pay an amount slightly over $100,000 as damages.

Signing a protection mandate is equivalent, when homologated, to handing over the keys to your destiny to a third party. The choice of your designated driver therefore deserves careful consideration.