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What is legal incapacity?
Legal incapacity is the inability to make legally-valid decisions.
In Quebec, who determines whether a person is inapt and needs legal protection?
While minors are incapable by law, for adults it must be determined by a judge of the Superior Court.
On what basis does the judge make a decision?
The decision of incapacity is made in court on the basis of: medical and psychosocial evaluations; examination of the person by the court, the advice of the meeting of relatives, in-laws and/or friends; the recommendation of the Public Curator, and any other relevant evidence.
In Quebec what are the types of legal protection of incapable people?
There are two, a mandate in the event of incapacity and a regime of protection.
What is the difference between a mandate in the event of incapacity and a regime of protection?
A mandate in the event of incapacity is a document by which a person designates another to look after his person and/or property. It defines the scope of his powers and his preferences which is implemented by the court only when the author becomes inapt.
A regime of protection is the designation by the court of a substitute decision-maker, called either a tutor or a curator, when no mandate in the event of incapacity has been made.
If I have a power of attorney and a will, do I still need a mandate in the event of incapacity?
Yes. A power of attorney becomes invalid when the author has become inapt and a will provides for the distribution of property when the author has died. A mandate in the event of incapacity provides for the intervening situation where a person is alive but has become incapable.
How can I avoid the Public Curator from taking over my affairs?
The best instrument is the mandate in the event of incapacity by which a person appoints a relative, close friend, professional or financial institution to act as mandatary in the event of incapacity and specifies the powers and limits.
If none has been made, it is best to organize the members called to the meeting of relatives, in-laws and/or friends to avoid disagreement over who should be appointed the curator or tutor, otherwise the Public Curator can use the dissent as a pretext to snatch the incapable person and his property.
In the Event of Incapacity
What do I do when a person who has made a mandate in the event of incapacity has become inapt?
A medical and psychosocial evaluation of the inaptitude have to be obtained and a motion for the homologation of the mandate has to be presented to court to have the inaptitude confirmed and the mandate validated.
What are the forms of regimes of protection?
If no mandate in the event of incapacity has been made, then a legal regime of protection is established. This is either a curatorship for a person who is totally and permanently inapt, or a tutorship for a person who is temporarily or partially inapt. A judge appoints a substitute decision-maker, being a mandatary, a curator or a tutor, depending on the situation.
What do I do if I receive a 30 day notice from the Public Curator informing me that it has obtained evaluations that a person is inapt?
If you are a relative or close friend with an interest in the well-being of the inapt person, then request a copy of all the documents concerning the person’s status, if you know the inapt person has made a mandate in the event of inaptitude have it homologated and if none exists then attend proceedings.
What documents are required before undertaking a motion for the establishment of a regime of protection for an incapable person?
The minimal requirement is the production of a medical and a psychosocial evaluation. If not in advance, then during the course of judicial proceedings an examination by court, the recommendation of the Public Curator and the advice of meeting of relatives, in-laws and friends will be added.
What is the meeting of relatives, in-laws and friends?
It is the gathering of related people and close friends before a notary or clerk of the court to express whether in their opinion the person is inapt, whether he requires a regime of protection, what form of regime of protection, who should be appointed as the curator or tutor, who should be designated the members of the tutorship council and who should be its secretary.
If I am appointed curator or tutor, what are my responsibilities?
The tutor or curator must provide an accounting at least once a year to the tutorship council of three people and to the Public Curator.
The tutor or curator must also provide security in one of three forms acceptable to the tutorship council: either an insurance policy, giving tangible guarantees such as real estate or other acceptable assets or a freeze on the bank account funds.
Working with the Public Curator
What kind of information will I receive from the Public Curator? Is there an obligation on its part to respond?
At the commencement of its administration, the Public Curator is obligated to prepare an inventory with evaluation of a ward’s assets before two witnesses, preferably at least one being a relative or close friend, in which event the signing witness should obtain a copy.
During its administration, the Public Curator is obligated to provide a summary financial statement every year however it only does so upon written request. At the end of its administration the Public Curator must give a complete detailed final accounting with supporting documents to the person replacing it as legal representative or, in the event of decease of the ward, to the liquidator and heirs. Finally, at all times the ward can consult his file and obtain a copy of documents in it. The spouse, close relative, in-law and person having a special interest in the ward can also do so but only with the authorization of the Public Curator.
There is a discrepancy between what the law requires the Public Curator must provide and what it provides readily. Considerable experience has shown that, regrettably, little information is provided and is done so only grudgingly with obstacles of every imaginable kind put in the way for what appears to be to discourage inquiries.
What rights does an incapable person who is a ward of the Public Curator have?
- Be consulted for their opinion and advice for all decisions.
- Have all property administered according to the rules of administration of the property of another.
- Have property inventoried in the presence of two witnesses one of which is preferably a family member.
- Have the right to access their file, and
- Receive an annual summary accounting.
After death the heirs or successors are entitled to a detailed final accounting with supporting documents.
The Public Curator is a State entity, are its services free?
That is a frequent misconception. As a rule, for acting a curator or tutor for an incapable person the Public Curator must charge administration fees according to a fixed tariff, charging for certain acts a set amount, for other acts according to time spent and for still others a percentage of the value involved. The precise amounts can be found in the Regulation respecting the application of the Public Curator Act.
For wards with less than $130,000 in assets and $2,500 in liquidity who are receiving subsistence level income either social assistance or minimal old age pension the Public Curator must renounce its fees.
How do I file a complaint about the Public Curator?
Complaints regarding actions taken by the Public Curator are filed with the Quebec Ombusdman (aka Protecteur du Citoyen). The jurisdiction of the Ombusdman extends to Québec government departments under the Public Service Act, including the Public Curator. The agency prepares an annual report with recommendations based on the complaints it receives.
We recommend filing a formal complaint in order to document the issue. You may contact us for help or, in the case of complaints against services provided by the Health and Social Services network, refer to CAAP which is an organization mandated to assist users.