Curateur public du Québec
The mandate in anticipation of incapacity is a written document in which a person of sound mind, called a mandator, designates another person, called a mandatary, to act on his or her behalf and take care of him or her or his or her property, or both, should he or she become incapacitated (see definitions). The mandator may designate more than one mandatary. Drawing up the mandate The mandator may draw up his or her mandate in anticipation of incapacity personally , or have it drawn up by another person of his or her choice (ex.: a notary, a lawyer). If the mandate is drawn up by the mandator or a person other than a notary, it must be signed in the presence of two witnesses who have no interest in the content of the mandate and who are able to certify the mandator’s capacity to act. In that case, it is a mandate made by private writing. If the mandate is drawn up by a notary, it is a mandate made by notarial act. The content of the mandate varies according to the needs and desires of the mandator. For example, the mandator could designate several mandataries: one to take care of his or her person and another to administer his or her property. He or she must also provide for at least one replacement for each of the persons designated in case one of them refuses to be a mandatary or is no longer able to assume the role (ex.: he or she moves far away, resigns, becomes incapacitated or dies). No form is required for drawing up a mandate in anticipation of incapacity. However, sample mandates are available, including one provided by the Curateur public du Québec. It is recommended that the mandator
Registering the mandateA mandate in anticipation of incapacity drawn up by
It is possible to have a mandate recorded in one of these registers even if it was not drawn up by a notary or lawyer. Homologation of a mandateHomologation is a legal procedure to verify
The homologation of a mandate in anticipation of incapacity is essential to make the mandate executory and is required by law both for the mandate made by notarial act and for the mandate made by private writing. The mandate is homologated as soon as the mandator’s incapacity has been certified by medical and psychosocial assessments. Upon completion of this procedure, a court judgement enables the mandatary to exercise his or her duties. Revocation of the mandate A mandate in anticipation of incapacity may be revoked in the following two cases:
Replacement of the mandataryWhen the mandatary can no longer assume his or her role or dies, the replacement mandatary provided for in the mandate becomes the new mandatary. If no replacement is provided for, the institution of protective supervision may be requested by
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