Law to better protect
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The Civil Code of Québec provides four protection measures to address incapacity in a person of full age. These measures vary according to the severity of the incapacity and whether it is permanent or temporary. They may concern:
Although not strictly speaking a form of protective supervision, the protection mandate allows the incapacitated person to be looked after and their property to be administered in their best interests.
This measure is in a special category because it carries out the person’s own wishes. While they were lucid, the person drew up a protection mandate, and appointed someone or several people to look after them and their property. In order to take effect, the mandate has to be homologated.
The mandate and protective supervision with an advisor to a person of full age are the only two measures under which the protected person continues to exercise their rights themselves. However, if for example, someone is able to prove that at the time they signed a contract, the person was incapable of giving free and informed consent, the court could order annulment of the act.
This is the least intrusive version of protective supervision. It is suitable for a person with a mild intellectual deficit or temporary incapacity due to illness or an accident. The person is capable of taking care of themselves but may be unable to cope with certain decisions. When they have an advisor, they retain their autonomy and continue to exercise their rights. For example, they may manage their own salary.
The advisor assists the person with certain acts, mainly concerning administration of their affairs. This means the advisor has no authority to execute an act on the person’s behalf. In other words, the advisor is not allowed to sign a contract or lease or sell a house for the person they are assisting. And they are not allowed to oblige the person to follow their advice.
The tutor to the property may be a trust company or a financial institution authorized to perform this function.
Tutorship is used for a person whose incapacity is partial or temporary. It may apply to the property, the person, or both, depending on the person’s incapacity and their needs.
A person under tutorship may execute certain acts alone (e.g. decide how to use their salary) or with the help of their tutor. For other acts, the tutor represents them.
The scope of the tutor’s responsibilities is determined either by the court, when it appoints the tutor on the recommendation of a meeting of relatives or friends, or by the Civil Code of Québec.
A tutor or curator is assisted by a tutorship council, which also supervises them. The council also has to give them certain authorizations. In some situations, the council advises the court.
The tutor may be assigned to the person, their property – with simple administration – or both.
This is the form of protective supervision used for a person whose incapacity is total and permanent.
The curator to a person of full age is also appointed by the court on the recommendation of a meeting of the relatives (including relatives by marriage) or friends. The curator represents the person in all civil acts and may be appointed to the person, the property – with full administration – or both.
A protection measure comes to an end when: