Incapacity and the need for protection

What is incapacity?

A person is incapable when they are unable to care for themselves or manage their affairs.

Incapacity may be declared due to a mental or degenerative illness, stroke, intellectual disability, head injury or weakened state as a result of old age that alters the mental faculties or physical ability to express one's wishes.

These are the first steps to take when someone close to you is vulnerable and needs protection:

Inform the other members of the family
Try to reach a consensus about what should be done
Tell the person concerned what is going on and if possible, involve them in the formalities
Find out whether they have drawn up a mandate in case of incapacity

Confirming incapacity and the need for protection

The two possible situations:

What is meant by need for protection?

Under the law, the need for protection exists when an incapacitated person must be assisted or represented in the exercise of their civil rights. This need may arise from the person's isolation, the duration of their incapacity, the nature or state of the person's affairs, etc.

The person presumed to be incapacitated is living in their own home

First find out what is wrong with them and whether they are able to continue living alone, by having them examined at their local CLSC. If necessary, you can then obtain the required medical and psychosocial assessments for opening protective supervision.

The incapacitated person lives at a residential facility or is hospitalized

The attending physician and a health professional perform the assessments.

A person's capacity may be limited when they become unable to take care of themselves or administer their property. This incapacity has a medical basis and may be caused by illness, disability or weakening of the mental faculties due to aging; as a result, the person is unable to make an informed decision. The incapacity is confirmed in medical and psychosocial assessments and may be total or partial, and temporary or permanent.

Is protective supervision appropriate?

Incapacity does not always mean that legal protective supervision will be instituted. There are other less restrictive solutions for the person concerned and their immediate circle. Once protective supervision is instituted, the protected person's rights are exercised by someone else and their freedom is limited. Clearly this is a decision with far-reaching consequences for the person concerned.