Seniors experiencing a loss of autonomy
Protection mandate: Decisions mandataries can make about a family member or friend’s money and property
If someone close to you has appointed you as mandatary in their protection mandate and you’re wondering what decisions you can make about their money and property once the mandate has been homologated, here’s what you need to know to perform your role as mandatary.
The decisions you can make depend on what’s included in the protection mandate
As mandatary, the decisions you can make about a family member or friend’s money or property depend on what’s included in the protection mandate. Check the protection mandate to find out what you’re allowed to do.
Whatever the case, make sure to keep a track of how you’re managing the mandator’s property and money. As mandatary, you must render an account at some point.
If the protection mandate expressly lists the acts you can perform and the decisions you can make, check it to find out what you can do as mandatary.
If you have difficulty understanding what is and isn’t allowed, talk to a notary or lawyer, or visit a legal clinic.
If the protection mandate gives you “full administration” of the person’s property, you must:
- Take all necessary measures to preserve their property, i.e., prevent it from losing value.
- Make their property productive and increase the value of their patrimony.
For example, you can:
- Sell their property;
- Change the destination of their property, i.e., change its usual function (e.g., convert a residential building into a commercial building);
- Make various investments, even risky ones.
If the protection mandate gives you “simple administration” of the person’s property, your role is limited to preserving their property, i.e., preventing it from losing value.
For an immovable, this could mean:
- Making sure it’s cleaned on a regular basis.
- Making necessary repairs to keep it in good working order.
- In the case of a residential immovable, collecting rents, renewing leases, and increasing rents every year.
To manage the person’s money, make only investments that are “presumed sound”, i.e., investments that usually aren’t risky. The Civil Code of Québec provides a list of types of investments that are presumed sound.
Simple administration places more limits on acts that can be performed exclusively by mandataries than full administration does. You may have to obtain authorization from the court if you wish to:
- Take out a hypothec on the person’s immovable to finance work to preserve it.
- Sell the person’s property that is not perishable or likely to depreciate rapidly.
To better understand your rights and obligations as a mandatary, talk to a notary or lawyer, or visit a legal clinic.
If the protection mandate does not specify the acts you can perform or the decisions you can make about the mandator’s property, you have “powers of simple administration” over the person’s property. See the preceding section.
Certain limits apply
Whatever powers you’re given (performing certain specific acts, simple or full administration), you have to respect certain limits.
With some exceptions, you can’t:
- Buy or take possession of property belonging to your family member or friend.
- Profit from the information you’ve obtained in your role as mandatary, i.e., use this information to obtain a benefit or advantage.
- Profit from the property you administer, i.e., use the property for your own benefit and not the mandator’s.
On the contrary, when carrying out your mandate, you must:
- Act honestly and faithfully in the interest of the mandator.
- Act with prudence and diligence, i.e., with care and attention.
- Avoid placing yourself in a conflict of interest.
- Take into account the mandator’s wishes and preferences.
- Respect their rights and safeguard their autonomy.
With certain exceptions, you must promptly inform the mandator of any decisions you make affecting them. To the extent possible, you must also maintain a personal relationship with the mandator and involve them in the decisions made in their regard.
What happens if you overstep the limits?
If you overstep the boundaries set by the protection mandate or the law, the consequences will vary depending on the situation.
For example, if you invested the mandator’s money in unauthorized investments that have lost value, you may have to pay back the amounts lost.
Similarly, if you used the mandator’s property for your own benefit, you may have to reimburse certain amounts (e.g., the amount of the person’s losses or an amount equivalent to the enrichment obtained).
Beyond financial consequences, in some situations, you could be asked to step down as mandatary or the protection mandate could be revoked.
Who’s responsible for the costs you incur to fulfill your mandate?
As a mandatary, you could incur some expenses to fulfil your mandate (e.g., paying for the services of an accountant to file the mandator’s income tax returns).
Unless otherwise stipulated in the protection mandate, you can use the mandator’s funds to reimburse these costs, as long as they’re reasonable.
The protection mandate may also provide for remuneration to compensate you for the time you spend fulfilling your role as mandatary. In that case, you can pay yourself from the mandator’s funds.
To find out how much you can recover and how to go about it, talk to a notary or lawyer or visit a legal clinic.
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WARNING
The information presented on this page is not a legal opinion or legal advice. This page explains in a general way the law that applies in Quebec. To obtain a legal opinion or legal advice on your personal situation, consult a legal professional.