Simple or full administration

EXCEPTION: A person under the protection of an advisor is not regarded as incapacitated. They retain their legal autonomy and can therefore exercise all their civil rights and conduct the overall management of their property. The person only calls upon their advisor for help with the acts specified in the judgment opening their protective supervision.

In the case of a tutorship or curatorship, the degree and duration of a person's incapacity are the factors that determine the type of administration and powers exercised by their legal representative.

If the person drew up a mandate in case of incapacity, the clauses will specify the responsibilities and powers of the mandatary. If the clauses are not sufficiently clear (general mandate), the rules will be the same as for tutorship to a person of full age under the Civil Code of Québec. However, if additional protection is required, the opening of protective supervision will be requested.

Simple administration

In the case of a mandatary

If the mandate is of a general nature, the mandatary has the powers of simple administration.

When a person of full age is partially or temporarily incapacitated, the form of protective supervision that applies is tutorship to the property. This involves simple administration.

The tutor only represents the person for the acts specified by the court, so the person retains a degree of autonomy. The tutor is required to act with the aim of safeguarding and maintaining the value of the property, which includes the person's home and furniture, and make presumed sound investments (Presumed sound investments (articles 1339 and 1341)).

Authorizations to be obtained by the tutor to property

The tutor may not dispose of the incapacitated person's property without first obtaining the authorizations required by law. Authorization by the tutorship council is required for:

refusing an inheritance bequeathed to the protected person;
accepting a donation that involves an obligation;
lodging or pursuing an appeal on behalf of the represented person;
offering property as security;
causing the permanent division of a piece of real estate held by the person in undivided co-ownership, if the value of this whole property is under $25,000;

The tutor requires court authorization before:

contracting a substantial loan in relation to the patrimony;
selling off a major item of family property, a piece of real estate or a company;
mortgaging a piece of real estate;
causing the permanent division of a piece of real estate held by the person in undivided co-ownership, if the value of this whole property exceeds $25,000;

In reaching its decision, the court will seek the advice of the tutorship council before issuing the judgment.

Full administration

In the case of a mandatary

Unlike a curator, a mandatary is allowed to make all kinds of investments if the mandate gives them powers of full administration.

For a person of full age who is totally and permanently incapacitated (no longer able to take care of themselves or administer their property), the form of protective supervision that applies is curatorship. The curator to the property has powers of full administration: this means they must not only safeguard the patrimony but as far as possible, make it yield a profit as well. The curator may decide alone:

to loan, sell or mortgage the property or modify its use or composition, provided they do not act in a situation of conflict of interest;
to make investments from the patrimony of the represented person, provided these investments are presumed sound (real estate, bonds, etc.). Deposits at a bank or caisse populaire must be redeemable on demand or on a maximum of 30 days' notice, unless special authorization is obtained from the court.