The general explanations below answer the main questions raised by the caregivers concerning the homologation of a Protection Mandate, formerly known as a Mandate of Incapacity, and the General Power of Attorney. To illustrate the concepts, we will present Jeanne's hypothetical situation.
Jeanne's Situation - 1st act
Jeanne is 76 years old. She has an only son. Since the death of her husband a year ago, her son feels she is more fragile. He visits her several times a week and is always ready to do anything to make her life easier. In short, he takes on the responsibilities of her late husband. Jeanne would like to entrust him with the administration of her finances and facilitate his role. Her notary recommends that she draw up a Power of Attorney Act and plan for a mandate in case of incapacity (Protection Mandate). She is initially reluctant, but then accepts: she trusts her notary.
General Power of Attorney and Protection Mandate: what is the difference?
The golden rule: a General Power of Attorney is issued to appoint a legal representative to represent a completely lucid person.
The General Power of Attorney drafted by Jeanne's notary authorizes her son to act on her behalf for specific administrative acts, because Jeanne trust him completely. The Power of Attorney is often, but not exclusively, accompanied by a Protection Mandate. This is the case for Jeanne. Indeed, we must provide an alternative to the General Power of Attorney if a diagnosis of incapacity is made: the Power of Attorney will no longer be valid.
The Power of Attorney is valid immediately: no judgment of the Court is necessary. Jeanne is apt: it is her right and responsibility to monitor her interests. Jeanne can revoke the Power of Attorney at any moment. She can obviously still administer her property. In fact, Jeanne and her son will continue to go to the bank together. The General Power of Attorney, however, is useful for her son: he can also handle certain responsibilities in the absence of his mother. In fact, companies as well as government and banking institutions must apply very strict personal data access laws. Without a General Power of Attorney, her son would encounter additional pitfalls to manage his mother's affairs.
There are also distinctions to be made regarding other types of proxies. Banking institutions issue bank proxies. Jeanne could go to the bank, along with her son, and request that her son be allowed to do banking transactions on her behalf. This bank proxy is no longer valid if a diagnosis of incapacity is made. There are also proxies issued by the revenue ministries of the governments of Quebec and Canada. These documents authorize a person to file tax returns on behalf of another person or to ask questions about his or her file. Bank and government proxies are protective measures that must be put in place even if a representative has a Power of Attorney. These proxies are valid for an indefinite period or until their revocation.
Jeanne's Situation - 2nd act
Jeanne is now 86 years old. She still lives in her house. Ten years have passed. Shock Wave: her family doctor diagnosed her with Alzheimer's. The social worker at the CLSC suggests that Jeanne move to a private residence for seniors. Her son then consults his mother’s notary and he confirms that Jeanne must consult her doctor to find out if she is able to authorize the deed of sale of her house. If a diagnosis of total incapacity is made, the planned Mandate of Incapacity must be approved. Her son is deeply relieved to have a valuable tool to help him manage her finances and sign a lease in a private retirement home. It is he who will have to choose the residence and he fears to make the wrong decision. What would she have liked? They never talked about it: his mother always refused to talk about leaving her home.
The homologation of a Protection Mandate
The golden rule: the mandatary can represent a family member who has been diagnosed with total incapacity only if the mandate is approved.
Indeed, the homologation of the Mandate in Case of Incapacity is an unavoidable step. When the mandate is approved, it becomes "enforceable,” and the mandatary is now entitled to perform that role.
Jeanne has a Protection Mandate. She is a cautious person and has followed the advice of her notary. She had previously discussed this role with her son and he agreed to act as mandatary if she needed it.
In a context where a person receives a diagnosis of total inability to manage his property and make decisions for his person, it becomes essential to represent that person with a Protection Mandate. The General Power of Attorney becomes invalid. It is at least in a grey area, and homologation procedures for the Protection Mandate must be started quickly.
What is a Protection Mandate?
It is a document, often notarized, that clearly specifies the wishes of a person regarding the management of his patrimony and the decisions for his person in a context where he becomes totally unfit. It is a contract between two people. The Public Trustee is not involved in this context. He would be involved only in the case of a financial abuse complaint, for example, and would apply investigative powers to protect a vulnerable person. It was Jeanne who decided on the direction of the decisions that her son must make. However, these are general instructions and the mandatary will have to decide for her taking into account the real context.
The role of the mandatary is not to make the assets of a person grow, but to avoid him any prejudice. He must also make the decisions concerning the choice of his environment and the health care that he must receive. Jeanne's son must make every decision and make every expense in the sole interest of his mother.
How much does a Protection Mandate cost?
In 2019, the total costs to be expected for the full process of homologation of a Protection Mandate usually ranges from $ 2,500 to $ 3,000 (including the medical report, the psychosocial assessment in private practice and the approval process by the notary). Professionals usually make a fixed price for the process. The price varies according to the region, the type of procedure chosen by the notary and deadlines, the type of mandate (in front of a notary or in front of witnesses), the complexity of the situation and the experience of the professional. The mandator must pay the costs of the homologation: it is not to the mandatary to pay these costs.
This article does not cover all eventualities, of course. If you have additional questions, consult a notary.
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Author: Julie Mailhot, Social Worker in Private Practice Specializing in Evaluation of Inaptitude