Certain obligations are common to all protection measures. In addition, a tutor, curator or mandatary has varying degrees of freedom of action, depending on whether they have simple or full administration of the property.
Inventory and the mandatary
Although the mandatary is not obliged to prepare an inventory unless instructed to do so in the mandate, they are strongly advised to do so. An inventory promotes transparency, which is invaluable, especially when the mandatary's duties come to an end.
When they take up their duties, a tutor or curator has 60 days in which to prepare an inventory of the property they administer and give it to the Curateur public and the tutorship council. Preparing this inventory is very useful because it helps to determine the protected person's budget, and will serve as a reference for the final report when the administration ends.
The legal representative to the property continues collecting all of the protected person's income (old age security pension, rents, allowances, etc.). They also pay the person's expenses, including accommodation, food and debts, and fulfil their monetary obligations (e.g. support payments).
The representative to property takes care of the formalities enabling the incapacitated person to obtain all the government or other benefits to which they are entitled (social assistance and social solidarity programs, allowance for severe employment constraints; reimbursement of a wheelchair by the Régie de l'assurance maladie du Québec or a walker by their private insurer, etc.).
Having separate bank accounts or caisse populaire accounts is strongly recommended, even if the protected person is the representative's spouse.
The legal representative should be very careful not to get into situations of conflict of interest when representing an incapacitated person. For this reason, they are advised to keep their administration of the protected person's property completely separate from that of their own.
They should not rent, purchase or utilize the incapacitated person's property for their own use, unless this is expressly authorized by the
Income tax returns
The legal representative must keep their own tax return completely separate from that of the protected person.
tutorship council or the court. The same applies to a mandatary, who may, if necessary, seek authorization from the Curateur public.
The law does not regard personal loans as presumed sound investments.
The representative to the property is only allowed to make presumed sound investments, as specified in the Civil Code of Québec. If they make other investments, they are automatically liable for any losses. However, a mandatary with full administration of property is allowed to make all types of investments.
The Civil Code of Québec prohibits the tutor from selling or disposing of the person's souvenirs, furniture or other personal items unless there is a "compelling reason".
A tutor must, for example, obtain authorization before selling, mortgaging or donating the property of the incapacitated person. And a mandatary requires authorization in order to purchase an item belonging to the person under their protection, unless the mandate allows them to do so.
Certain acts require the authorization of:
In applying a protection measure, the law provides a framework for supervising the representative and helping them in their task.When someone agrees to act as tutor or curator, they automatically agree to report annually to the members of the tutorship council and the Curateur public.
A mandatary is only obliged to produce a report when their duties come to an end. Arrangements up to that point will vary widely, depending on the provisions of the mandate. Someone may have been appointed to supervise the mandatary's administration, and the mandate may specify the scope and frequency of reports (e.g. annual management report, authorizations required for certain transactions, etc.).When a mandate is drawn up, the Curateur public strongly recommends including clauses of this type to promote transparency. From the mandatary's point of view, the more structured the administration, the easier it is to prepare their final report.