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Do you know what happens if you become incapacitated?

Do you know what happens if you become incapacitated?

Who will take care of you and your property if you can not do so anymore by yourself? You should know that incapacity can take many forms and can have different intensities. For instance, it may be due to a coma following an accident or to a degenerative disease. When inability is established, a procedure is initiated to create a protective supervision for the incapacitated adult. A meeting of relatives, persons connected by marriage or civil union and friends will take place so that they will be deciding on the person called tutor or curator who would be best placed to take care of yourself and your property. In addition, they will identify those who should be on the tutorship council, just about the same way as for the minor, as we remember. It is important to know that the tutor or curator must obtain the consent of the tutorship council or even of the Court to perform certain actions. For instance, the tutor must obtain Court permission to sell or mortgage any property of a value of more than $ 25,000, your income property, for example.

The mandate in anticipation of incapacity is your best protection in case of illness or accident! Indeed, it is possible, in this document, to plan what will happen in the event that you become incapacitated, and thus avoid the cumbersome procedure explained above. You can then choose the most suitable person to take care of these properties that represent your investment, as well as of your person. So there are two separate sections in a mandate of protection, the protection of your person and property protection. In the section about your property, you give the right to a person, the mandatary, to perform certain actions on your behalf in case you would become incapacitated. The powers given to the mandatary can be very precise and narrow or still wide enough to allow him a lot of freedom. For example, you could name your spouse as your mandatary and allow him to do anything except to sell your income property and remove a particular investment. In addition, it is possible to give permission for your spouse and children to continue to use the property that you own. For example, your spouse can continue to live in your home and your mandatary can continue to pay the tuition fees of your children in your care. The absence of such planning could cause trouble for your loved ones because the mandatary has an obligation to exercice his powers in the interest of the incapacitated adult only. On the other hand, the section concerning the protection of your person contains information about the medical care to which you agree, or not, and your accommodation, as well as guidance on your end-of-life. It is also possible to include there the consent or refusal to organ donation, as well as any provisions that you consider important to your well-being. Note that it is possible to appoint more mandataries to act together and that you can appoint different people as mandataries for your property or your person.

The mandate will take effect only when it enters into force, that is to say, due to medical and psychosocial assessments as well as a judgment declaring incapacity and homologating the mandate. As there can be a delay of a few months between when a person becomes incapacitated and the moment when we can execute what is provided by the mandate in anticipation of incapacity, it is therefore possible to integrate a power-of-attorney in the mandate in case of inability which takes effect upon signature. The law provides that the general mandate has no effect anymore when we become incapacitated, unless proceedings are pending to put the mandate into effect. The advantage of the power-of-attorney is thus to enable the management of the property during the few months of waiting. So, if I am in a deep coma and my mandate given in prevision of incapacity contains a general power-of-attorney in favour of my spouse, the latter can go to the bank to pay my bills, for example, and this even before obtaining the judgment giving the permission to use the mandate of protection. Once the judgment is obtained, the power-of-attorney will not have anymore effect and the mandate in anticipation of incapacity will take all his effects. But we must be careful, because as mentioned above, the power-of-attorney takes effect upon signature and gives a lot of power to one person. If you choose to include this document in your mandate in anticipation of incapacity, caution is necessary to prevent that a person uses it for a fraudulent purpose.


The holograph or made in the presence of witnesses will and the mandate made in the presence of two witnesses are legal ways to proceed. However, these documents will have to be subjected to a verification procedure costly both in time and money. To be valid, there are still rules to be followed under the Civil Code of Quebec, so be aware that these self-made documents are not automatically valid, in particular forms that can be found on the Internet, which, moreover, do not necessarily conform to Quebec law.

The notarial act is an authentic act, so the notary must verify the identity, capacity and willingness of the signatories. The document is therefore more difficult to put into question. In the case of a will, it is valid without any other formality. You are sure to find it, because its existence is published in the register of wills and mandates of the Chambre des notaires du Québec and the original is kept in the vault of the notary in a secure and confidential way.

We wish to remind you that these documents must usually be revisited as the situations of life may imply that the choices may change. Also, it is always good that a few people close to you know your wishes and the location of your documents. In this regard, a patrimony inventory can greatly help in the task to know the inventory of your assets and your debts. Thinking about planning the transfer of your dwellings will not make you die, rather it ensures peace of mind. We invite you to consult the appropriate professionals in order to obtain the best strategy for your personal situation.

About the author

Me Annie Lapointe, notaire

Me Annie Lapointe s’est jointe à l’équipe à titre d’étudiante au cours de l’été 2010, pendant ses études en droit, ce qui lui a permis d’être sensibilisée à la situation vécue par les propriétaires d’immeubles locatifs. Elle a obtenu son Baccalauréat en droit, ainsi qu’un diplôme de 2e cycle en droit notarial à l’Université de Sherbrooke. Elle a ensuite complété un stage de 32 semaines au sein d’une étude notariale de type traditionnel en Montérégie.

Me Lapointe a ensuite débuté sa pratique en tant que notaire et conseillère juridique au sein du Cabinet MESSIER SOUCY Avocats, dès son assermentation et son admission à la Chambre des notaires du Québec depuis 2012.

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