Bringing the mandate into force
For information about launching the procedure for enforcing the mandate of the person who chose you to represent them, see Homologation of a protection mandate.
You have agreed to take on the duty of protecting someone close to you if they become incapacitated, and you have had their mandate homologated by the court. What are your responsibilities as a mandatary? Who can help you fulfil your role?
You should be guided by the general principles that apply to all representatives. Talk things over with the person under your protection and be sure to inform them about any decisions you make concerning them. If you are in any doubt, always be guided by their best interests and their religious or other convictions.
Inventory of property and administration report
Even if the mandate does not specify that you have to produce these two documents, we still recommend that you:
This will greatly simplify matters when you prepare the report required by law when your duties come to an end. And making transparency a priority helps to foster good relations in the family!
For more ways of facilitating your job, see the pages about private tutors and curators.
Whether you are the sole mandatary, mandatary to the property, or mandatary to the person, your role is specified in the mandate itself. If the document is sufficiently comprehensive, it should include provisions about the well-being of the incapacitated person and administration of their property. These clauses express the wishes of your mandator at the time when they were still lucid: do everything you can to respect them.
How can you protect the relative or friend who appointed you? What are their rights, especially when it comes to consent to care? Consult the pages on Rights of the incapacitated person and Protection of the person.
You exercise either simple administration of the property of the person under your protection, or full administration, if this is specified in the mandate.
Whether or not you are obliged to account for your administration at regular intervals to a third party, when your duties end you are legally obliged to give a report:
In this case you should interpret the mandate according to the rules applying to a tutorship to the person of full age. You should also seek advice from the Curateur public or obtain court authorization if the mandate says nothing about the following situations:
Maybe the mandate does not enable you to represent the person properly? In this case, the court may decide to institute a tutorship or curatorship to extend the mandate’s scope.
If you are mandatary to the property, you have to report to the tutor or curator who was designated to take care of matters concerning the person. Conversely, if you are mandatary to the person, you have to report to the tutor or curator to the property.
As a rule, acting as someone’s mandatary is not something you are paid for. However, if it takes up a great deal of time and energy, you may ask the court to authorize payment of compensation from the assets of the incapacitated person.
It is legal for a mandatary to enlist temporary help if they are unable to fulfil their functions for a short period (e.g. if they spend a month outside Québec).
You may be faced with a difficult situation and the person under your protection may be unable to express their wishes, for example about consent to care. Before making a decision, talk things over with:
Together you should be able to determine what the person would have wished. If you are still at a loss, contact the Curateur public.
You are not allowed to relinquish your responsibilities as mandatary until a replacement (or a tutor or curator) is in place, and you have given them a final report of your administration. It is important to notify the Curateur public of the change, to ensure the Register of homologated mandates is updated.
If you have to move far away, if you yourself become incapacitated or if some other situation arises making it impossible for you to perform your duties properly, the replacement designated in the mandate may take over.
If the mandate makes no provision for a replacement, then the court institutes a tutorship or curatorship at your request.
If it receives a report that something is amiss, the Curateur public has the power of inquiry over mandataries. If you are negligent or not fulfilling the mandate’s provisions and a complaint about you proves to be well founded, the Curateur public may ask you to rectify matters or make an undertaking to do so. It may even petition the court to have you relieved of your functions or request that the mandate be revoked. Someone else may also launch this procedure.