How to protect someone close to you while waiting for the homologation of a protection mandate

To care for the person you can…

Make decisions required by his or her state of health

When the person being cared for is incapable of giving or refusing consent to care, certain individuals, such as a spouse or a close relative, can make decisions concerning the care required by the person's state of health.

For example, the care required by their state of health can be removal of tissue or treatment.

Advance medical directives take precedence

If the person being cared for drew up advance medical directives for some care, health professionals will refer to them to understand their wishes concerning health care.

Ask the court to authorize you to act in the case of an emergency

In an emergency, you can ask the court to authorize you to act to protect someone close to you.

To do so, your request for homologation must have already been made to the court or be imminent.

You must also prove to the court that it’s necessary to act quickly to prevent the person close to you from suffering serious injury, for example, to his or her physical health.

If the court accepts your application, it can issue any order it considers necessary to protect the person or appoint a representative to act in his or her name. For example, the court could appoint someone to take care of his or her basic needs, such as food and accommodation.

To protect the person’s property, you can…

Take the necessary measures to protect their property

If the person who is the subject of the mandate no longer capable of administering his or her property or appointing someone to take care of it, you can voluntarily act to preserve his or her patrimony and property using what is called the “management of the business of another”.

You can act in a variety of ways. For example:

• repairing the person’s property to maintain it in good condition (e.g., repairing the roof or exterior siding of the home)
• taking care of finances (e.g., paying his or her bills )

However, your actions must be limited to what is strictly necessary to preserve the property. Usually, you cannot use the person’s property or the information obtained for your benefit.

The necessary expenses incurred will usually be reimbursed from the person’s patrimony.

Important

Several rules govern business management. In particular, you must act prudently and honestly.

If you cause injury to the person who is the subject of the mandate or to other persons, you may be liable for your actions. For example, you may have to pay them to make reparation.

Furthermore, if you intentionally prevent the person from enjoying his or her property or money you could also be accused of fraud.

To learn more about the rules of business management, talk to a lawyer or a notary.

Continuing to act under a power of attorney

If the person who is the subject of the mandate granted you a power of attorney to administer his or her property while he or she was still capable, you can continue to use that power of attorney when the person is no longer capable of managing his or her affairs. To do so, an application to homologate a protection mandate must have been filed with the court.

This situation is exceptional, however, because a power of attorney is usually valid only if the person who granted it is capable.

Important

The court can intervene to revoke the power of attorney if it considers it necessary, for example if it feels that the person with the power of attorney is incorrectly administering the property.

Administration of benefits received from various government programs

Some government programs allow a person, usually someone close to you, to be designated to administer the benefits received by someone who is no longer capable of taking care of his or her property.

Here are some programs that allow it:

• Canada Pension Plan retirement pension and Old Age Security pension,
• The Québec Pension Plan,
• Québec's public automobile insurance plan,
• Social Assistance and Social Solidarity.

Typically, you must communicate with the body concerned and make a request to be authorized to administer the benefits for the person close to you. Medical proof of the person’s incapacity may be required.

Ask the court to authorize you to act in the case of an emergency

In an emergency, you can ask the court to authorize you to act to protect the person close to you.

To do so, your application for homologation must have already been made or be imminent before the court.

You must also prove to the court that it’s necessary to act quickly to prevent the person from suffering serious injury, for example, to his or her physical health.

If the court accepts your application, it can issue any order it considers necessary to ensure the administration of the person’s property.

For example, the court could appoint someone to take care of their finances and pay their bills.