If you have no mandate, who will act on your behalf?

Joyce Blond Frank

July 2009

Why should you have a mandate in the event of incapacity and why is there so often resistance to making one? You should have one to protect yourself as well as to make life easier for those close to you.

The cause of the resistance is twofold. First, the thought of turning over the control of one’s assets to someone else can be frightening; second, no one wants to imagine that their faculties will ever be so impaired as to require someone else to act on their behalf.

It’s important to understand that the mandate in the event of incapacity does not take effect until a state of incapacity is shown to exist, and such a mandate only takes effect once a person’s mental faculties are impaired. Incapacity can result from such degenerative diseases as Alzheimer’s, a head injury or a mental illness or handicap.

The assessment to establish whether or not incapacity exists is carried out by a physician and a social worker, both of whom must prepare and sign reports that attest to the person’s condition. Once the incapacity has been assessed, the court will study the reports and verify both the incapacity of the person and the validity of the mandate itself. This provides protection to the person and ensures that no one who is in fact capable of caring for himself and his assets is declared unable to do so. The question to be addressed is: What happens when a person without a mandate is no longer capable of caring for himself or managing his affairs? That person will be declared in need of protection and placed under what is called “protective supervision.”

Protective supervision is established to ensure the protection of both the person and his assets by naming a curator to act for him, to take care of him and to administer his assets. But whereas in the case of a mandate the person himself has named who it is that he wants to carry out these duties,where there is no mandate, no one has been named and someone must be chosen by other people. This is done by calling a meeting of at least five relatives. Where there are not a sufficient number of family members available, friends can be called. Ideally, those at the meeting may be in agreement as to who should be named, but if they are not, family feuds can result.

The court ratifies the opening of the regime of protective supervision, relying on the same medical and psycho-social reports as in the case of mandate, as well as on the advice of those attending the meeting of relatives or friends. In some cases, one person is named to care for the person and another for the assets.

Whoever is named,he will have a harder time than a mandatory would as he will be under the surveillance of the Public Curator. He will be obliged to submit an opening inventory of the assets he is to administer and furnish a guarantee if the assets are worth more than $25,000, as well as proof of such a guarantee. He will be obliged to send an annual accounting of his management to the Public Curator. If the assets are worth more than $100,000 he may be required to have an audit done. This is expensive and will be paid for out of the assets. A mandatary does not have to assume all these obligations.

Furthermore, although your curator has full administration over your assets, he can only perform such acts as are permitted by law and they may not include your particular wishes. For example, you may have been helping a grandchild get through university by providing certain sums of money. In a mandate you can stipulate that you wish such support to continue. Without a mandate, your curator will not have the power to use your money for anything other than your needs and would therefore be unable to continue the support of the grandchild. Finally, what happens if there is no one to act as your curator? Then the job is taken over by the Public Curator. In 2007, the Public Curator of Quebec was overseeing the protection of 11,000 adults who had been declared incapable, 58 per cent of whom were over 65 years of age.

The question we should all ask ourselves is: Should I have a stroke or become otherwise incapacitated, would I rather let others choose who will care for me and my assets or would I prefer to make my own choices now and protect myself while I can?