Along with the protection mandate, protective supervision for persons of full age is one of the 4 legal protection measures provided for by the Civil Code of Québec. Protective supervision can be instituted for a person of full age if he or she needs to be assisted with certain acts or represented in the exercise of his or her civil rights.
There are 3 protective regimes:
- protective supervision with an advisor to the person of full age
- tutorship
- curatorship
Protective Supervision with an Advisor to a Person of Full Age
Protective supervision with an advisor to a person of full age is adapted to the needs of a person of full age with a mild intellectual impairment or temporary incapacity due to illness or an accident.
The person is generally capable of caring for himself or herself (e.g., deciding on health care, running errands), but can experience difficulty making certain decisions, in particular those concerning the management of their affairs and property.
A person for whom an advisor to a person of full age has been appointed is not deemed to be incapacitated (see definitions). He or she therefore retains his or her full civil rights and continues to exercise them (e.g., managing work income or voting in municipal, provincial or federal elections).
The role of an advisor to the person of full age is to help the person, as needed, with certain administrative decisions (e.g., buying a car, renting a dwelling). Advisors are not legal representatives. As such, they are not authorized to act on behalf of the person they are helping. For example, they cannot sign a contract or lease, or sell a house for the person.
Tutorship
Under tutorship, the tutor is the legal representative of a person of full age who is partially or temporarily incapable of caring for himself or herself or administering his or her property.
The person may perform certain acts alone (e.g., manage his or her salary or vote in municipal, provincial or federal elections). The tutor helps him or her with other decisions. The scope of the tutor’s responsibilities may be determined by the court.
The tutor may be charged with ensuring the well-being of the incapacitated person or the simple administration of the person’s property, or both.
Tutorship may also be assumed by more than one tutor: a tutor to the person and a tutor to his or her property.
Note
Simple administration consists of ensuring the preservation and maintenance of the protected person’s property as well as the maintenance of its value.
Curatorship
Under curatorship, the curator is the legal representative of a person of full age who is totally and permanently incapable of caring for himself or herself or administering his or her property. The acts that the person can perform are very limited. His or her curator represents him or her in all civil acts.
The curator may be designated to ensure the well-being of the incapacitated person or to ensure the full administration of his or her property, or both.
Curatorship may also be assumed by more than one curator: a curator to the person and a curator to the property.
Note
Full administration consists not only of seeing to the preservation of property, but also making it productive, to the extent possible, and growing the patrimony of the person under protection.
General Obligations of the Tutor and Curator
The tutor and curator have a duty to act in a way consistent with the interests of the person of full age that they represent, the respect and defence of his or her rights, and the preservation of his or her autonomy. They must ensure the person’s well-being, represent him or her in the exercise of his or her civil rights and administer his or her property prudently and responsibly.
Monitoring the Administration of the Property of the Incapacitated Person of Full Age
The Act provides for the Curateur public du Québec to monitor the administration of the property of the incapacitated person of full age.
The tutor or curator is obligated to provide the Curateur public with certain documents, namely:
- an inventory of property, which consists of a list of property (e.g., pension, indemnity, life insurance, immovable) and debts of the person of full age (e.g., hypothec on an immovable)
- an annual administration report presenting the person of full age’s property, debts, income and expenditures for the past year
- a copy of proof of security, meaning a guarantee of protection (e.g., hypothec, insurance contract, hold funds) for the property of the person of full age, if their value exceeds $25,000
- a final report, after the administration of the tutorship or curatorship has ended
Instituting Protective Supervision
To institute protective supervision, an application must be made to the court.
This may be done by:
- the person of full age
- one of his close friends or relatives (e.g., his or her spouse, a member of his or her family, a friend)
- the Curateur public du Québec
When protective supervision is instituted, the court takes into account the need for protection, the degree of autonomy as well as the nature and degree of the person’s incapacity.
The need for protection and the incapacity must be confirmed by medical and psychosocial assessments.
The court:
- chooses the protective supervision that best meets the person’s needs, and
- designates, generally from among the person’s close friends or relatives, an advisor to the person of full age, a tutor or a curator
In certain cases, the court may designate the Curateur public as the tutor or curator of an incapacitated person. Protective supervision (tutorship or curatorship) is then public rather than private. The Curateur public could collect fees for the services rendered to an incapacitated person that it represents.
Tutorship Council
The tutorship council is set up during the process to institute private tutorship or curatorship. Appointed by the court, the members of this council are generally close relatives or friends of the person under protection.
The role of the members of the tutorship council is to:
- accompany the tutor or curator in his or her duty, so that he or she can adequately fulfil his or her responsibilities
- give the tutor or curator some advice and authorizations
- monitor his or her administration
Reviewing Protective Supervision
A review allows protective supervision to be maintained, terminated (e.g., if the person becomes capable again) or changed from one form to another, according to changes in the state of health of the person under protection. In the review process, the court takes into account medical and psychosocial reassessments.
A review of protective supervision is mandatory. It must be requested:
- by the advisor to the person of full age every 3 years, in the case of protective supervision with an advisor to the person of full age or tutorship, or
- by the curator every five years, in the case of curatorship
The court may also set a different period. However, the person under protection, the advisor to the person of full age, or his or her tutor or curator may, at any time, request such a review.
Replacing a Tutor or Curator
Under private protective supervision, a tutor or curator who does not meet his or her obligations can be replaced, in particular, at the request of:
- the person under protection or one of his or her close friends or relatives
- the tutorship council
- the Curateur public
The court examines the request. If the tutor or curator dies, the tutorship council can ask the court for his or her replacement.
Incapacitated
A person is incapacitated 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.
