Dative tutor to property

Dative tutor

This person may hold the position of tutor to the child's person or their property, or both.

Tutorship to the property may be shared by a number of people, including legal entities (e.g. companies specializing in financial investments). Each tutor is then individually responsible for the property entrusted to them.
A single tutor may undertake the dative tutorship to the person. This individual must be a physical person of full age, capable of exercising their civil rights and in full possession of their faculties.

The dative tutor to the property ensures the protection of a minor child's patrimony in the following situations:

if the mother and father die;
if the mother and father become incapable of taking care of themselves and their property;
if the court has deprived them of their parental rights or tutorship to the property (legal tutorship).

Unlike the parents, the dative tutor to the property must always report on their administration, whatever the value of the child's property. This involves giving an annual administration report:

to a tutorship council;
to the Curateur public;
to the child, if they are 14 or older;
to the tutor to the person, when this function is filled by someone else.

How is a dative tutor be appointed?

Someone is designated by the parents

No legal procedures are required in order for the tutorship to take effect. The tutor has 30 days from the time they are informed of their appointment in which to accept or refuse the position. They must inform the following people of their decision:

Unless the person indicates their refusal within 30 days of being informed of their designation as tutor, the law deems that they have accepted the position.

the Curateur public;
the estate liquidator, if the parents have died;
the replacement tutor, if the parents appointed one.

Upon accepting the position, the dative tutor takes up their duties, unless their appointment is contested in court.

The law allows the designated person to change their mind about refusing the position, up to the time a replacement is appointed.

The designated person refuses the tutorship

If the parents designated a replacement, this person takes up the position instead. If not, the court must be asked to appoint another tutor.

The parents designated different tutors

In this case, the tutor who was designated by the last parent to die or become incapable of looking after themselves and their property is the one who takes up the position.

Where both parents die or become incapacitated at the same time, the court decides.

Someone is designated by the court

The DIRECTOR OF YOUTH PROTECTION at a Centre jeunesse du Québec may ask for a tutor to be appointed for a child who is abandoned or in danger

The court designates a tutor when the child has been abandoned, or the tutor is no long able to perform their duties (if their tutorship is contested, or if they die, go bankrupt, become incapacitated or resign).

Procedure

Any interested person, even the minor child themselves, may ask for the appointment or replacement of a dative tutor. There are two ways of proceeding:

Applying directly to the court

See PDF Document

The request is made in a petition to the court in the district where the child resides. A lawyer or notary may be asked to undertake this. The petitioner must notify the Curateur public and child, if they are 14 or over. The request may be presented to a judge or clerk of the court, but if it is contested, only the judge may make a decision. This decision is then sent to the Curateur public.

Applying through a notary

The notary sends the request:

to the persons authorized to form the meeting of relatives called upon to designate the tutorship council, which will suggest a tutor;
to the minor, if they are 14 or over;
to the Curateur public.

The meeting of relatives is usually called and chaired by the Curateur public. It then files the relevant documents, with supporting information, with the clerk of the court. If there is no contestation within 10 days, the tutor is appointed by the court.

If the tutor dies

The tutorship council has to ask the court to designate another tutor. Until this person takes up office, the heirs must continue the late tutor's administration. This measure is designed to ensure temporary protection of the child's property.

Replacing the tutor

Anyone may ask for the dative tutor to be replaced by filing a petition with the court. The petition must be accompanied by the tutorship council's decision. However, the court does not have to act in accordance with this opinion if it feels it is not in the child's best interests.

The tutorship council and the dative tutor to the person are DUTY BOUND to undertake this procedure if they find the tutor to the property is not performing their duties properly.

If the request is justified, the court appoints a new tutor. A meeting of relatives does not have to be called.