As a caregiver, your loved one may assign you as mandatary to look after them and their property should they become unable to do so themselves. What is the role of the mandatary and how to draft a mandate of protection?
THE MANDATE, THE MANDATOR AND THE ROLE OF THE MANDATARY
The protection mandate (formerly called the mandate of incapacity) is a document permitting an adult (the mandator) to name, in advance, someone (the mandatary) who will ensure their well-being as well as the administration of their property in case of incapacity, i.e., in the event that the mandator becomes incapable of doing so themselves.
The mandator must be an adult and able to complete this function at the time the mandate is written. Moreover, since the mandatary will be called to make decisions in their place, in the best interests and respect of the mandator's wishes, it is highly recommended that the mandator choose one or more mandataries that they trust fully. This may, for example, be a spouse, child, extended family member, friend or neighbour.
All the responsibilities may be designated to one single mandatary or to several mandataries. As such, the mandator might appoint one person to fulfil the role of mandatary to the person and appoint one or more people as mandataries to property.
- Mandatary to the person This is a physical person who is responsible for looking after the moral and material well-being of the mandator (decisions on accommodation, personal or medical care, purchases, etc.).
- Mandatary (ies) to property These are people whose duty is to look after the mandator’s property. A legal entity, such as a trust company, may act as a mandatary to property.
It is strongly recommended that the mandator speak to prospective mandataries beforehand, to make sure that they are interested in taking on this responsibility. Once they give their approval, it is also advised to send a copy of the mandate to each mandatary who has been designated to fulfil this role. Obviously, it is in the best interests of all involved (the mandator and the mandatary(ies)) to discuss and clarify certain subjects, giving the mandator an opportunity to express their wishes to the designated mandatary. It is also important to name one or more replacements, because the mandatary selected might no longer wish or be able to fulfil this role when the time comes.
DRAFTING THE PROTECTION MANDATE
The drafting and signature of the protection mandate must be done when the mandator is capable of make free and informed decisions about their property and person. As such, in the event of incapacity, even when this has not yet been formalized by medical assessment, a person who is no longer able to understand their role as mandator can no longer sign a mandate for their protection. In this situation, steps to open a protection plan (curatorship or tutorship) must be undertaken.
There are two options for drafting a mandate:
- Notarized mandate.This mandate made before a notary gives the document authenticity. In other words, it will be more difficult to challenge it in court. The notary certifies the capacity of the person to understand the significance of the document and keeps the original copy of the mandate.
- Mandate before witnesses.This mandate must be signed by the mandator as well as two witnesses attesting that the mandator is mentally and physically able to express their will and understand the content of the document. The designated mandatary can under no circumstances be the witness. In addition, it is a good idea for the mandator to inform family and friends of the protective mandate that the mandator signed in the event of their incapacity.
TO CHANGE THE MANDATE
An adult may change their protection mandate as long as they have all their faculties. Therefore, if the appointed mandatary is no longer able to assume this role or the relationship of trust is broken, the adult may designate another mandatary. To do so, the adult must draft a new mandate.
PRACTICAL TOOLS AND REFERENCES