Curateur public
EXCEPTION: A person under the protection of an advisor is not regarded as incapacitated. They retain their legal autonomy and can therefore exercise all their civil rights and conduct the overall management of their property. The person only calls upon their advisor for help with the acts specified in the judgment opening their protective supervision.
In the case of a tutorship or curatorship, the degree and duration of a person’s incapacity are the factors that determine the type of administration and powers exercised by their legal representative.
If the person drew up a protection mandate, the clauses will specify the responsibilities and powers of the mandatary. If the clauses are not sufficiently clear (general mandate), the rules will be the same as for tutorship to a person of full age under the Civil Code of Québec. However, if additional protection is required, the opening of protective supervision will be requested.
In the case of a mandatary
If the mandate is of a general nature, the mandatary has the powers of simple administration.
When a person of full age is partially or temporarily incapacitated, the form of protective supervision that applies is tutorship to the property. This involves simple administration.
The tutor only represents the person for the acts specified by the court, so the person retains a degree of autonomy. The tutor is required to act with the aim of safeguarding and maintaining the value of the property, which includes the person’s home and furniture, and make presumed sound investments (Presumed sound investments (articles 1339 and 1341) ).
The tutor may not dispose of the incapacitated person’s property without first obtaining the authorizations required by law. Authorization by the tutorship council is required for:
The tutor requires court authorization before:
In reaching its decision, the court will seek the advice of the tutorship council before issuing the judgment.
In the case of a mandatary
Unlike a curator, a mandatary is allowed to make all kinds of investments if the mandate gives them powers of full administration.
For a person of full age who is totally and permanently incapacitated (no longer able to take care of themselves or administer their property), the form of protective supervision that applies is curatorship. The curator to the property has powers of full administration: this means they must not only safeguard the patrimony but as far as possible, make it yield a profit as well. The curator may decide alone:
