Steps to homologate a protection mandate

2) Find the most recent protection mandate

Before homologating a protection mandate, the court will want to ensure that the mandate presented best reflects the person's wishes.

Therefore, judges usually require that you provide the person's most recent protection mandate.

To ensure that you have the most recent protection mandate, you can:

• Ask the person if they have prepared one before
• Request a search in the Register of Protection Mandates of the Chambre des notaires du Québec
• Request a search in the Register of Wills and Mandates of the Barreau du Québec

Searches conducted in these two registers take between two and three weeks.

3) Open a file at the courthouse

To open a file at the courthouse, you need to prepare a written application called an "Application for homologation" and file it at the courthouse.

You must also file all the documents needed to homologate a protection mandate, namely:

• The protection mandate (preferably the original document)
• The medical assessment report
• The psychosocial assessment report

In most cases, you also have to provide:

• An affadavit from one of the witnesses of the signing of the protection mandate
• A search certificate from the Register of Protection Mandates of the Chambre des notaires du Québec
• A search certificate from the Register of Wills and Mandates of the Barreau du Québec
• The person's act of birth
• A copy of the person's identification documents

Are there other mandataries appointed in the protection mandate?

In this case, special rules may apply. Talk to a lawyer or notary, or visit a legal clinic to find out what steps to take.

4) Inform the people concerned

The application for homologation must be sent to specific people.

It must be sent with a document called "notice of presentation," specifying the date the application will be presented to the court, among other things. This date must be between 10 days and 2 months after the notice was sent.

You must “notify” the application and the notice to the following persons:

• The Public Curator
• Two people close to the senior who is the subject of the protection mandate
• The replacement mandatary, if any
• The persons designated to receive the rendering of account , if any

The application for homologation, the notice of presentation, and a notice informing the person who is the subject of the mandate of their rights must be served on that person. That means you must ask a bailiff to personally hand these documents to the person.

Important

One of the people who receives the application and the notice might decide to contest the application for homologation. If this happens, you may have to take some further steps.

5) The court analyzes your application

If no one contests your application for homologation, you don't have to do anything else at this stage.

On the date indicated on your notice of presentation, a judge or a special clerk will take your file in charge and ensure that:

• the person is truly incapacitated
• The protection mandate is valid
• You have the capacity to exercise your role, and you’re not in a conflict of interest
• The person's wishes and preferences are respected as much as possible

To do so, the judge or special clerk will speak with the person and invite the people who received the application to present their observations. The judge or special clerk might also contact other people, such as the doctor or social worker who evaluated the person.

At this stage, a judge may take additional measures if he or she considers it necessary. For example, the judge might:

• order that documents be notified to other persons
• call a meeting of relatives, persons connected by marriage or a civil union, or friends
• require complementary opinions, reports or expert reports

6) The court renders its decision

After analyzing the application for homologation, the judge or special clerk will render a decision. He or she can either accept or refuse to homologate the protection mandate.

Please note

In some cases, the judge or special clerk will refuse to homologate the protection mandate and replace it with tutorship to persons of full age.

In other cases, the judge or special clerk will agree to homologate the mandate but may want to complete it with tutorship to a person of full age to better meet the person's interest.