Mandate of Incapacity or Protection Mandate?

Mandate of incapacity and protection mandate

Many articles refer to the mandate of incapacity and the protection mandate. But what is the difference? How to choose your mandatary ? What are the rights of the mandatory and the mandator ? Bonjour Residences discuss about all of these topics with you in this article.

Mandate of incapacity and protection mandate: 2 terms, one meaning

Since 2016, the mandate of incapacity has officially changed its name for protection mandate. Indeed, with the arrival of the new Code of Civil Procedure on January 1, 2016, the mandate was simply renamed for the protection mandate. According to Le Curateur Public Québec:


"It is an official document by which you, as an adult in possession of all your faculties, appoint one or more persons to take care of you or your property, if you become incapable of doing so yourself temporary or permanently. In this document, you specify, as mandator, the responsibilities of these persons, called mandatory by the Civil Code of Quebec. In case the court would rule on your incapacity, this person or these people should protect you, represent you and fulfill the wishes you have expressed in your mandate. "


Although the name has changed to better reflect what it is, the goal is the same: it is a document that identifies who can take care of your person and your property, if you can not do it anymore.


How to choose your mandatory ?

Selecting one or more mandatory to make decisions about your person and property when you become unfit is an important choice. You must choose a person who knows your situation, your habits and your way of life. You must choose a person you can trust because she will be responsible for the decisions regarding the care required, to see for your accommodation and the administration of your property. It is recommended to discuss with the mandatory to verify his interest to have that role. In addition, it may be easier to choose someone who lives closer to you and with whom you can make immediate arrangements.


What are the rights and responsibilities of the mandatory?

According to the Public Curator of Quebec, the role of the mandatary was previously specified in the mandate by the clauses relating to the well-being of the incapable person and the administration of his property. These clauses are the expression of the wishes of the mandator. Thus, to the extent possible, the mandatory has to respect the wishes of the mandator.


In addition, the responsibilities of the mandatary towards the mandator are as follows, according to Educaloi:
- see for the mandator accommodation;
- meet the needs of the mandator (such as clothing, personal hygiene products, etc.);
- consent to medical treatment of health;
- take legal action on behalf of the person who is unfit to deal with matters that affect him or her.


What are the rights of the mandator ?

A person who is unfit to take care of herself or her business nevertheless remains a full and inviolable citizen, entitled to his integrity. The person retains its civil rights, but the exercise is the responsibility of its mandatory, whether guardian, curator or agent, when placed under legal protection.


Civil rights refer to all the prerogatives attached to the person. That is to say, the right to respect for her private life and family life, respect for her home and respect for her correspondence, the right to the image, the right to freedom and security , the right to come and go, the right to freedom of thought, conscience and religion, the right to freedom of expression, freedom of assembly and freedom of association, the right to marry and the right to found a family.

To learn more about the protection mandate, we suggest you read our article on the protection mandate and the general power of attorney. You will have more specific explanations on this concept thanks to the presentation of the hypothetical situation of Jeanne.


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