Mandates, wills, living wills and more: what, how, and why

Joyce Blond Frank B.A., B.C.L., LL.M.

April, 2009

As the population ages we hear more talk of wills, mandates, powers of attorney, mandates in the event of incapacity, and living wills. WHAT are they? WHAT is the difference between them? WHY should you have them? HOW do you get them? WHAT happens if you don't have them?

The will is a document that states what you want done with your possessions and savings (your estate) after you die and names the person you want to carry out those wishes. In your will you can give someone the right to continue residing in your home, you can have one person benefit from the income of your estate while another inherits the capital, and you can donate specific objects or amounts to specific individuals or charities while someone else receives the bulk of your estate.

If you do not have a will, the law will decide how your estate is to be distributed. Many people feel that even if they do not have a will, their spouse will be protected and inherit their estate. This is not so; the spouse does not necessarily inherit the entire estate, but may have to share it with children, siblings and parents. Without a will, there is no one named to administer the estate. You can write out your will by hand, date it and sign it and it will be valid when probated; or you can have one drawn up by a notary or lawyer. The important thing to remember is that the will only takes effect upon death.

The living will is a contradiction in terms as it takes effect while you are living but unable to state your wishes. The law provides that you cannot be forced to undergo medical treatment without your consent. If you are unable to consent to treatment for whatever reason, such as illness or an accident, a close relative or your representative, designated by your mandate or by the court, can do it for you. Hemust act in your best interest and must take into account any wishes you may have expressed when you were well. This is where the “living will” comes in. It is not a real will but rather an informal document that you can write out yourself containing your instructions in the event you become ill and are unable to express your wishes. It guides the person making decisions for you so that those decisions are the same as what you would have made yourself were you able to do so. The mandate in the event of incapacity is made in anticipation of incapacity and names a representative (mandatary) or representatives to take care of you and/or administer your property should you become incapable of doing so yourself. It may also contain the same provisions regarding health care as are found in the “living will.”

The mandate in the event of incapacity will take effect while you are still living, but only if you no longer have capacity, that is, if you are unable to take care of yourself or if you do not have the capacity to make your own decisions with regard to your property. It can contain special provisions for your special needs or lifestyle. For example, it can provide for the care of a pet, for contributions to charity, for an allowance to or support of a spouse or other person, for the sale or renting of a property, for a contribution to the education of a family member, etc. Where there is no mandate, such expenditures would have to be approved by the public curator’s office and the court.

The mandate in the event of incapacity is a formal document that can be prepared by an attorney or notary. In some cases the document provides instructions for your personal care as well as instructions with regard to the administration of your property. In other cases two separate mandates may be made, one with regard to personal care, the other with regard to administration of property. You can name one or more persons to represent you and different people can be named to care for your person and administer your property. In order for the mandate to take effect there must be a court judgment. This is the mandate called the homologation of the mandate. You will be advised that someone has asked the court to homologate the mandate and you will have the opportunity to appear in front of the judge and argue against the demand. Before deciding whether or not you have capacity and before rendering its judgment the court will study a physician’s report and the report of a psycho-social worker, and will obtain the testimony of witnesses. In many cases a representative of the court will interview you as well even if you do not fight the request. It is important to understand that this document, unlike a will, can only take effect while you are living. Also it will only take effect if the court is convinced that you do not have capacity. Furthermore, should you ever regain your capacity, you can easily end the mandate.

Why do we encourage people of all ages to sign a mandate in the event of incapacity? It is not only the diseases of age that can diminish a person’s capacity to make their own decisions, but accidents and temporary illness as well. If you choose not to have a mandate in the event of incapacity and at some point are assessed as lacking in capacity you may be declared to be a person in need of protective supervision. In such a case an application must be made to the court to convene a meeting of at least five relatives and friends. At that meeting a tutorship council usually consisting of three persons is elected as well as a tutor, curator or administrator. This is amore complex procedure and deprives you of the right to name your own representative (mandatary). Moreover, should it be determined that you are in need of protective supervision and should nobody be willing to act on your behalf, the public curator will step in. We are often asked to differentiate between a mandate in the event of incapacity, an ordinary mandate and a power of attorney. As already discussed, the mandate in the event of incapacity only takes effect upon judgment of the court based on proof of incapacity.

An ordinary mandate is the agreement by which you empower someone to act for you even though you have the mental capacity to make your own decisions. In the Quebec civil code there is no mention of the term “power of attorney” as there is in other places. In effect, the contract of mandate is the document by which you grant a power of attorney to another person. The best known and most used mandate is the bank's power of attorney. Granting a third party the right to use your bank funds should not be a general practice and should only be done with someone you trust completely, and then only if necessary and after much thought.

You can name one or more persons to represent you and different people can be named to care for your person and administer your property.