What are the benefits of having a protection mandate in case of incapacity?

It is advisable to have a protection mandate by which you appoint a person to take care of you and to administer your property in case of incapacity, and more particularly if you are advanced in age or you carry out a job involving health risks.

The protection mandate allows the mandator to choose one or more mandataries and specify the powers he/she wants to entrust to them. It is possible for the mandator to appoint a mandatary to the person and a mandatary to property. He/she can also specify what kind of medical treatment he/she wishes to receive or not receive, where applicable, and thus avoid any aggressive therapy. It will also be possible to appoint in the protection mandate a tutor who will take care of his/her minor children.

The mandator may also choose to entrust his/her mandatary to property with the simple or full administration of his/her property. Simple administration refers to the current administration, the preservation of the property of the mandator, as well as the performance of all the acts necessary or useful for the maintenance of the use for which such property is ordinarily destined. If the mandator opts for the full administration, the mandatary will then have the authority to perform any act relating to the property of the mandator, such as the sale and mortgage of the latter's property without prior or further authorization. In short, the choice between simple and full administration mainly relies on the quality and degree of the mandator's trust in his/her mandatary.

Moreover, if the protection mandate provides so and the mandataries appointed under such a document were to give up their office, the latter can then appoint their own replacements. However, in the absence of such a substitution clause, the protection mandate will have no legal value and protective supervision should then be set up for the incapacitated person.

The benefits of signing a protection mandate are not insignificant when considering the fact that, in the absence of such a document, it will be necessary to proceed with the institution of a protective supervision, and that the situation arising therefrom might not be the one that we would have wished for. Hence, protective supervision imposes a more rigorous supervision, since the appointed tutor must render account to a tutorship council, which must be created, as well as to the Public Curator of Quebec.