Homologation of a mandate in case of incapacity

Homologation of a mandate is an official procedure that takes time.

The steps leading to enforcement of a mandate are very similar to those for opening a tutorship or curatorship, as shown in the diagram. However, in addition to certifying that the person presumed to be incapacitated is indeed incapacitated, based on the medical and psychosocial assessments, the court has to verify the existence and validity of the mandate.

A mandatary may carry out all these steps him/herself. However, since the steps are complex, he/she may call on a lawyer or notary, certified or otherwise, to present the proceeding in Superior Court.

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The initiative for approaching the court rests solely with the mandatary (the individual whom the mandate designates as the person's representative). In exceptional cases, the mandatary's replacement may request homologation of the mandate.

The mandatary asks professionals in the health and social services network or private practice for a medical and psychosocial assessment of the incapacitated person.
The mandatary then submits an application for homologation to Superior Court in the judicial district where the incapacitated person resides, with copies of the mandate and the assessments.
The application is served to the incapacitated person and one of their relatives whom the law deems reasonable.
The notary or clerk to the court asks the incapacitated person various questions to:
- determine how severe their incapacity is;
- verify that the mandate is authentic;
- find out what the person's wishes are.
The procedure ends with a court judgment making the mandate executory; the mandatary is now entitled to use the powers entrusted to them.
If the court feels the mandate does not protect the person sufficiently (e.g. contains no financial clauses), it may also recommend placing them under tutorship or curatorship.