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Unravel the mysteries of power of attorney, mandates and living wills

July 2011

As the summer holidays approach, I thought it might be a good time to answer some of the questions I am frequently asked.

What is the difference between a mandate and a power of attorney? The power of attorney is a document in which you give permission to another person to act for you even though you have the capacity to make your own decisions and act yourself. The mandate in the event of incapacity is a document in which you permit someone other than yourself, called a mandatary, to administer your affairs and make personal decisions for you when you are no longer capable of doing so. This is usually prepared by a lawyer or a notary.

Why do I need a mandate if I have a will? They serve different purposes. The mandate permits others to act for you while you are still alive. The will takes effect after death and contains your instructions as to how you want your estate to be handled and distributed after you are gone.

I have a power of attorney from the bank so why do I need a mandate? The bank’s power of attorney only covers that bank’s transactions and will not apply to other banks or financial institutions, such as trust or investment companies. You would need a separate power of attorney for each of them or one general power of attorney which, in Quebec, is referred to as a “mandate.”

When does my power of attorney or mandate take effect? The power of attorney takes effect as soon as you sign it. This means that either you or the person you have designated can do the banking or change your investments.

The “mandate in the event of incapacity” will only take effect after it has been established to the satisfaction of a court of law that you are incapable of taking care of your own affairs. This legal process is called “homologation”. As well as containing provisions with regard to the administration of your assets, it can and usually does, also contain provisions with regard to such personal needs as health care, assisted living and end-of-life issues.

What is a living will? It is an informal document containing instructions regarding your health and end-of-life care. Such instructions should be given to your physician and put into your medical and hospital records. They can be helpful to your doctors, caretakers, family and friends should it become necessary to make decisions on your behalf, especially with regard to the use of extraordinary measures.

Who is the public curator? The office of the public curator is a government body responsible for administering the property and affairs of those who cannot do so for themselves and have failed to designate someone to do it for them. In other words, for those who have not made a mandate in case of incapacity. It also oversees the work done by private curators and administers the estates of people who die without leaving a will and without any known heirs.

What is a curator; what is a mandatary? A curator is named where there is incapacity and no mandatary has been designated. In such cases a person can be declared in need of protection and a relative or friend will be named curator. This is done by calling a meeting of relatives and/or friends who then suggest to the court the person to be chosen. Where there is no one to act, it is the office of the public curator that takes over. The mandatary you name in your mandate in the event of incapacity is your choice rather than the choice of your relatives and/or friends.

How do I make a will? Can I do it myself? To be valid, a will must be drawn up in one of three forms. The notarial will is drafted by a notary. It takes effect upon death and does not need to be probated (approved by the court). The will in the presence of witnesses is signed by the testator in the presence of two witnesses. It can be typed or written by a third party. This is the form used by lawyers and it must be probated after the testator’s death in order to take effect. The holograph will must be both handwritten and signed by the testator and must also be probated after death.

How do I make a mandate in the event of incapacity? This document must be drafted in a specific form. It is therefore advisable that it be prepared by a lawyer or notary. It will only take effect after being homologated (approved) by the court. Before granting this approval the court will require the reports of a physician and psycho-social worker as proof that you no longer have the capacity to make decisions for yourself. The content of your mandate in the event of incapacity and your choice of mandatary are very important and should be given much thought.

I hope the above answers some of your questions.



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