The court rules that the mandate given in anticipation of incapacity represents the will of the mandator and not that of a third party, regardless of whether they are a judge and apparently well-intentioned. It is not up to the latter to order a new deal and change the rules of the game. Your Honor, the game is over.
The mandate given in anticipation of incapacity is a legal tool that we have to anticipate the consequences of illnesses that impair our physical or mental faculties and to choose the person who will then be responsible for the administration of our property and the protection of our person. It also allows us to avoid the imposition of a guardianship and the oversight by the Public Curator that characterize these protective regimes. There are few decisions in a person's life that rely on such trust in the chosen person. Those who have wanted to exclude the Public Curator from the administration of their property certainly do not want to see him meddling in their affairs through a back door.
Due to her health condition, a lady is "placed" in a long-term care facility. Some time before her "placement", she signs a general power of attorney as well as a mandate in anticipation of her incapacity and designates her common-law spouse as her mandatary.
Despite the responsibilities that are his, the appointed spouse rarely visits Madame, neglects to pay the bills related to the hospitalization, and refuses to take care of her care. Alerted by the family, the Public Curator asks to be temporarily appointed by the court to ensure the protection of Madame. In reaction, the spouse files an application for the validation of the mandate in court. The Public Curator replies by requesting to be appointed as curator of the property. Despite the claims of the Public Curator, the court validates Madame's mandate, but orders the spouse to provide an annual report of his management to the Public Curator.
The Public Curator appeals to the Court* and argues that Madame's mandate does not impose such an obligation and that, furthermore, the court order contravenes the provisions of the Public Curator Act. The Court concludes that a court, after verifying the capacity of the mandator, can only accept or refuse the application for validation. The court cannot impose an accountability obligation on the mandatary, unless provided for in the mandate. The administration of a protection mandate is therefore not subject to the oversight process and accountability applicable to guardianships and curatorships.
The court rules that the mandate given in anticipation of incapacity represents the will of Madame and not that of a third party, regardless of whether they are a judge and visibly well-intentioned. It is not for the latter to order a new deal and modify the rules of the game. Your Honour, the game is over.
* CA Montréal 500-09-015862-055, 2006-01-26
