Designation of a dative tutor by the parents

"Who will take care of our child if we die or can no longer look after them?" Parents often worry about what will happen to their minor child. To put their minds at rest, they may want to appoint someone while they themselves are alive and have all their faculties; this person will then act as tutor if disaster strikes. The parents may even choose a replacement in case the designated tutor refuses the responsibility or does not fulfil their obligations properly.

The advantage of taking this initiative is that in the event of the death or incapacity of the mother or father, the court does not need to intervene to appoint a tutor; nor does a Director of Youth Protection or the Curateur public.

What responsibilities to give and to whom

The parents may choose SEVERAL tutors to the property but ONLY ONE TUTOR TO THE PERSON. This must be a PHYSICAL PERSON, but tutors to the property may also be legal entities (e.g. a financial institution).

Dative tutorship involves two separate responsibilities:

protecting the child's person (bringing up, housing and feeding the child and supervising their development);
protecting the child's patrimony through sound management of their assets.

This is known as dative tutorship to the person and dative tutorship to the property.

The mother and father may confer these responsibilities upon one tutor or several.

Designated tutors may be Canadian or of other nationalities, but must be capable of exercising their civil rights and fully lucid.

A fully emancipated minor may be chosen as tutor.

Content of declaration to the Curateur public

The declaration should include the names, addresses, social insurance numbers and dates of birth of:

the parents;
the designated tutor or tutors (and their respective responsibilities)
the child;

If you wish to receive a confirmation of receipt, you should specify this. You are advised to keep a copy of the document and send one to the person you designate as tutor.

How to proceed

Parents may appoint a dative tutor:

in a mandate in case of incapacity;
in a will, which may be notarized, holographic (handwritten) or made in the presence of witnesses;
in a written declaration sent to the Curateur public; the document does not need to be notarized.

Parents may even specify in these three documents what remuneration the tutor should receive.

In all cases, the wishes followed are those of the last parent to die or lose their capacity to assume the tutorship.

Warning: Even if a tutor is designated in a mandate in case of incapacity or a will, there are still legal formalities to be undertaken with the court to bring the mandate into force or have a non-notarized will verified. The fees for these formalities are not charged to the child's account.