Law to better protect
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This person may hold the position of tutor to the child’s person or their property, or both.
The dative tutor to the property ensures the protection of a minor child’s patrimony in the following situations:
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:
How is a dative tutor be appointed?
If both parents die or become incapacitated, a member of the child’s family will be chosen to act as dative tutor. This tutor will be appointed:
Although the law does not require any legal steps for a tutorship to take effect, situations giving rise to its institution may require proof, for example, an attestation, in the case of a death, or a judgment, in the case of an incapacity, since the parents’ capacity is presumed.
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.
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.
If the parents designated a replacement, this person takes up the position instead. If not, the court must be asked to appoint another tutor.
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.
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).
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:
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.
The notary sends the request:
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.
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.
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.