Tutorship to a minor is a legal regime for the protection and representation of a child. Most of the time, a child’s tutors are his or her parents until he or she reaches the age of majority.
However, in some cases, for example if the parents die at the same time, people other than the parents can be tutors.
There are two types of tutorships to a minor:
- legal tutorship, exercised by the parents (father and mother) of the minor;
- dative tutorship, exercised by one or several people other than the parents.
Legal tutorship
The parents of a minor child are responsible for his or her well-being, the administration of his or her property and for representing him or her in exercising his or her civil rights (ex.: signing a contract). Pursuant to the Civil Code of Québec, they are automatically the child’s legal tutors.
The child’s parents exercise legal tutorship together, whether or not they are separated. In certain situations, only one parent may exercise it, namely if the other parent
- has died; or
- is declared incapacitated (see Definitions) by the court.
Dative tutorship
Dative tutorship must be instituted namely when both parents of a minor child die or are declared incapacitated following a court decision. The dative tutor then takes care of the child instead of his or her parents.
Dative tutorship may be exercised
- by a dative tutor to the person and property; or
- by more than one tutor, such as a single dative tutor to the person and one or more dative tutors to the property.
The dative tutor to the person must oversee the minor child’s well-being and represent him or her in the exercise of his or her civil rights. As for the dative tutor to the property, he or she must ensure that the child’s property is well administered and protected until the child reaches the age of majority.
The parents may designate one or more dative tutors for their minor child ahead of time in
- their mandate in anticipation of incapacity;
- their will; or
- a declaration to the Curateur public du Québec.
It is suggested that parents
- provide a substitute for each designated dative tutor; and
- notify the persons they have designated.
In the event that parents die or become incapacitated, the dative tutor designated by the parents has 30 days from the time he or she is informed of the designation to accept or refuse to assume the dative tutorship.
In certain cases, the court may appoint a dative tutor if, for example,
- both parents have died or become incapacitated at the same time and they have not designated dative tutors or have designated different ones;
- the dative tutor designated by the parents has refused to exercise the dative tutorship and there is no replacement tutor; or
- the dative tutor does not fulfill his or her obligations once he or she takes up his or her duties.
Monitoring the administration of the minor’s property
Tutor has a duty to act in the minor’s best interests, for both the child’s person and property.
The Act provides for the Curateur public du Québec to monitor the administration of the minor’s property
- if the value of the property to be administered exceeds $25 000, in the case of legal tutorship; or
- regardless of the value of the property to be administered, in the case of dative tutorship.
In these cases, the tutor is obligated to provide certain documents to the Curateur public, namely
- an inventory of property, which consists of a list of the minor’s property (ex.: life insurance, indemnity, pension, donations, inheritance) and debts (ex.: hypothec on an building);
- an annual administration report presenting the minor’s property, debts, income and expenditures for the past year;
- a copy of proof of security, meaning a guarantee of protection (ex.: hypothec, insurance contract, hold funds) for the minor’s property, if their value exceeds $25 000; and
- a final report, after the administration of the tutorship has ended.
Tutorship council
A tutorship council is set up as soon as
- the value of the minor’s property exceeds $25 000, in the case of legal tutorship; or
- a dative tutorship is established (except if a director of youth protection, a person he or she recommends or the Curateur public acts as a dative tutor).
Appointed by the court, members of the tutorship council are generally close relatives or friends of the minor. Their role is to accompany the tutor in his or her duty, so that he or she can adequately fulfill his or her responsibilities,
- by giving the tutor some advice and authorizations; and
- by monitoring his or her administration.
Replacement of a minor’s tutor
A tutor who does not meet his or her obligations can be replaced, at the request of the
- tutorship council;
- a relative of the minor;
- the Curateur public; or
- a director of youth protection.
The court examines the request.
If the tutor dies, the tutorship council can ask the court for his or her replacement.
Incapacitated
A person is incapable when they are unable to care for themselves or manage their affairs. Incapacity may be declared due to a mental or degenerative illness, a stroke, an intellectual disability, a head injury or a weakened state as a result of old age that alters the mental faculties or physical ability to express one's wishes.
As the clientele and conditions may vary based on the services, this information is provided under each service.
