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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"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. However, the situation leading to the institution of a tutorship may require the court’s involvement, for example, to obtain a judgment declaring the parent incapable.
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:
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.
The declaration should include the names, addresses, social insurance numbers and dates of birth of:
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.
Parents may appoint a dative tutor:
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 protection mandate 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. The same applies to legal procedures that would be required to declare a parent incapable.