Law to better protect
Find out more about the changes that will have a direct impact on the lives of thousands of vulnerable people and their loved ones.
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Since 1990, the opening of protective supervision has been a legal process with different stages, as this diagram shows.
The person themselves, their spouse, a relative, a friend or a volunteer working with the person may request the opening of protective supervision, with or without the help of a notary or lawyer.
If nobody undertakes the formalities, the director of a local community health centre (CLSC) or other health institution sends the request to the Curateur public, who then submits it.
Once the medical and psychosocial assessments are ready, the person submitting the request may use a lawyer, or a notary, who may or may not be accredited, to take care of the whole process. They may also take care of it themselves. Warning: Requesting the opening of protective supervision may prove rather complex for a layperson!
Various expenses are associated with the opening of protective supervision (court and bailiff’s fees, notary’s or lawyer’s fees, etc.). Depending on the incapacitated person’s financial position, these fees may be partly or fully covered by legal aid , or paid out of their patrimony.
Note that the Curateur public charges fees for launching the process for opening private protective supervision.
The following documents are required:
Whoever is dealing with the formalities now sends the application to the person to be protected, a member of their family and the Curateur public, through a bailiff (this is known as serving the application).
You also have to:
Until the court confirms the incapacity of the person in need of protection, they remain fully entitled to exercise their rights.
If the person deemed to be incapacitated opposes the plan, they may ask a lawyer to contest the opening of protective supervision on their behalf.
By law, the clerk to the Superior Court or an accredited notary has to personally confirm the incapacity by asking the person some questions. This is an opportunity for the person (or their lawyer if they are being represented) to voice their opinion about the opening of protective supervision or their opposition to it.
Composition of family meeting
For the family meeting to be valid, it has to be attended by at least five people (relatives, relatives by marriage and friends). Unless this condition is met, the initiative for the proceedings is transferred to the Curateur public, which is the only party allowed to bypass this step.
This meeting is called by the clerk to the court at the date specified in the notice. The purpose of the meeting is to discuss the assessment reports and enable everyone to express their opinion about the form of protective supervision contemplated, and the choice of legal representative and members of the tutorship council. The person in need of protection may attend or be represented by a lawyer.
The clerk files the minutes of the family meeting with the court, along with the application for opening of protective supervision.
If an accredited notary held the family meeting, a similar procedure applies.
A hearing is only held if there is contestation. The incapacitated person may attend the hearing if they wish, or be represented by their legal counsel.
In the judgment, the judge or clerk takes into account the medical and psychosocial assessments, the results of the examination of the person, testimony from the family meeting, and any other evidence regarded as relevant (material previously written by the person, etc.), in order to determine the most appropriate form of protective supervision. They then appoint the legal representative and the members of the tutorship council. These appointments take effect at the date of the judgment.
Official notification of the judgment is sent to:
Following the judgment, the person is listed on the registers of protective supervision.