What is a Mandate in the Case of Incapacity?
This is a, “document in which a person, known as a mandatory, while in full possession of his faculties, appoints another person, known as the mandatary, to see to his protection or administer his property or both at once, in the event that illness or an accident deprives him of his faculties, either temporarily or permanently.” http://www.curateur.gouv.qc.ca/cura/publications/mandatE.pdfpermanently.
What is the homologation of a Mandate in the Case of Incapacity mean?
It is the legal procedure in which a person’s incapacity is proven by a Court of Law, and the designated mandatary is given the legal authority to act on the mandator’s behalf. Without this legal procedure, the document “as is” does not allow legally for the mandatary to use the authority entrusted to them by the Mandator.
When is it time to homologate a Mandate in the Case of Incapacity?
If your mother, father, spouse, partner, friend, or relative designated you to make decisions for their health care, medical treatment, housing situation, management of their finances, or for any other reason should they not be able to make decisions for themselves, it is recommended that you homologate a Mandate as soon as the mandatary (person who signed the document) is deemed incapacitated. As a mandatary (person named to manage the personal or financial affairs of another), you must have the complete legal authority to make all decisions (personally, medically, and financially) for your loved one. A homologated mandate is the legal step required to ensure that you can manage all aspects of your loved ones’ life without complications.
What are the steps involved to homologate a mandate?
Medical assessment:
A physician (M.D.) must complete a medical form (Report of the Director General – 2A) that outlines the person’s diagnosis and mental capacities. If you do not have a physician who can do this, Erickson Resource Group can refer you to someone.
Psychosocial assessment:
The CLSC social worker or a social worker in private practice can complete the psychosocial assessment for a mandate homologation. Often, the wait at the CLSC is between 5-8 months. Check with your local CLSC to assess the wait times. Erickson Resource Group can complete the psychosocial evaluation and report within 10 business days. An expedited service is available for urgent cases. Please phone Erickson Resource Group to learn more about the specific steps and fees involved in this process.
Both of these reports are given to a notary or an attorney for filing with the court. Please contact your notary or attorney for further information regarding the specific legal steps and fees involved. If you do not know a notary or attorney who specializes in this area of practice, please contact Erickson Resource Group and we can refer you to a notary.
What could happen if the Mandate is not homologated?
What if you need to sell you loved ones’ home but they are no longer competent to sign the necessary documents? What if you need to make changes to your loved one’s pension? Change an address? Change an investment account? None of this can be done without a homologated mandate. You may have been acting on the mandator’s behalf without a homologated mandate and have not had complications. However, if you are questioned by a financial or governmental institution and the Mandate is not homologated, financial accounts could be “frozen” until such time that the Mandate has been homologated. This could create delays of up to 6 months for family members.
What is a protective regime?
If someone did not take the steps to sign a Mandate in the Case of Incapacity, and it is felt that they require protection or assistance, someone can apply to the government to represent this person in financial and personal matters. There are different levels of protective regime. Please refer to the following link on the government website to learn more. http://www.curateur.gouv.qc.ca/cura/en/majeur/inaptitude/protection/index.html
What are the steps to apply for a private curatorship or private tutorship?
Medical assessment:
A MD must complete a medical form (Report of the Director General – 2A) that outlines the person’s diagnosis and mental capacities. If you do not have a physician to do this, Erickson Resource Group can refer you to someone.
Psychosocial assessment:
The CLSC social worker or a social worker in private practice can complete the psychosocial assessment for a private or public curatorship. Often, the wait at the CLSC is between 5-8 months. Check with your local CLSC to assess the wait times. Erickson Resource Group can complete the psychosocial evaluation and report within 10 business days. An expedited service is available for urgent cases. Please contact Erickson Resource Group to learn more about the specific steps and fees involved in this process.
Both of these reports are given to a notary or attorney for filing with the court. In addition, there is a “family council” that is facilitated by your notary or attorney. Please contact your notary or attorney for further information regarding the specific legal steps and fees involved. If you do not know a notary or attorney who specializes in this area of practice, please contact Erickson Resource Group and we can refer you to a notary.
What could happen if I do not become a private curator or tutor on behalf of my loved one?
What if you need to sell you loved ones’ home but they are no longer competent to sign the necessary documents? What if you need to make changes to your loved one’s pension? Change an address? Change an investment account? None of this can be done without an established protective regime. If this step is not taken until a crisis occurs, the family will experience long time delays and accounts can be frozen in the interim.
Who can help me navigate this process?
Erickson Resource Group can provide the psychosocial assessment for either a homologation of a mandate or for an application for protective regime on a private basis. You may also contact l’Ordre Professionnel des Travailleurs Sociaux du Québec for more information. We also have referrals to many notaries and/or attorneys who can assist you with the legal process. You may also consult the Chambre des Notaries for more information. Erickson Resource Group can refer you to a physician who can assist with the assessment and completion for the required medical form on a private basis. Erickson Resource Group can provide you with guidance and support throughout this process.
How long does this process take?
Erickson Resource Group can complete the psychosocial assessment required within 10 business days after meeting with the client and family. Generally, a ERG social worker can meet with the client and family within a week of receiving the request. An expedited service is also available. If you choose to go with a public agency (CLSC, CHSLD, etc.), there could be delays for up to 6 months. Contact your local government agency for an estimated time frame. ERG provides services in both English and French.
The medical report can also be completed on a private basis and ERG can assist you in connecting with a physician. If you choose to go with a public agency (CLSC, CHSLD, etc.), there could be delays for up to 6 months. Contact your local government agency for an estimated time frame. You can also request that the client’s family doctor complete the required form. ERG can assist you in facilitating this process.
The legal petitioning of the Court cannot occur until both the psychosocial assessment and the medical report are completed and given to the notary or attorney. Once the notary or attorney has these documents, they can petition the Court. Depending on the notary/attorney and the Court delays, the process can take as little as 4 weeks and up to 6 months. There are additional steps required for the opening of a private curatorship or private tutorship.
For more information, contact Stephanie Erickson at Erickson Resource Group at (514) 795-7377.
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Hi I am trying to get private curatorship for my mother suffering from dementia/alzheimers who is in a home and although I have already gone through the channels listed above (have doctor’s papers, social worker’s assessment, contacted a notary), the notary asked me for 7 names to make up the group. I have been having trouble getting the notary to reply to any of my messages and emails, I don’t know if he has filed the case with courts yet or not. I don’t know what to do. I feel I need a new notary, but because I don’t live in the same province as my mother does, I don’t know who to go to. Any suggestions on all of this?
Thanks