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Tutorship for Minors

Simon is 8 years old. From the day he was born, his mother and father have been his legal “tutors”. This means that they ensure his well-being and provide for him financially. But what happens if Simon’s parents are in a car crash that claims both their lives?

In this Infosheet, Éducaloi explains tutorship for minors.

What is tutorship for minors?

Before the age of 18, a person is a "minor" and has 1 or more “tutors”. Most of the time, parents act as tutors. They must act in their child's best interest by taking care of him and the things he owns.

As of age 18, a person usually becomes completely independent from his tutors. From that moment, he is free to exercise all of his rights on his own and without restriction (draw up a will, donate organs while still alive, etc.).

What are the 2 types of tutorship of minors?

There are 2 types of tutorship:

Legal Tutorship

Legal tutorship is the kind automatically granted to parents. They do not have to be named by a court. If 1 parent dies, tutorship automatically stays with the other parent. Most of the time, parents act as tutors free of charge. But in exceptional cases, when managing the minor’s property becomes the parents’ main job, a court can decide that they should be paid.

Dative Tutorship

If both parents die, or if they are both lose their parental authority (a court takes away all the parents’ rights regarding their children because of the parents’ poor conduct), a dative tutor is appointed. For more information about when parents are deprived of parental authority, consult our Infosheet Parental Authority  (http://www.educaloi.qc.ca/en/loi/parents/151/). Dative tutorship is usually taken on by a family member or by someone close to the minor.

When no person in the minor’s immediate circle can assume the role of dative tutor, the Director of Youth Protection (DYP), and sometimes the Public Curator, is appointed as tutor. For more on the Public Curator, consult our Infosheet The Public Curator and Protecting the Incapacitated  (http://www.educaloi.qc.ca/en/loi/senior_citizens/48/).

Parents can appoint a dative tutor in their wills or through a written statement filed with the Public Curator.

The person chosen to be a dative tutor may refuse the appointment. But whether he accepts or refuses, a dative tutor named by the parents must inform the Public Curator of his decision.

A minor can have more than one tutor: one to care for his personal well-being and another to take care of his property. The tutor caring for the minor’s personal well-being must be an individual (an uncle, a sister, etc.) and not a company. The tutor in charge of property need not be a physical person. It can be, for example, a trust company specializing in managing property.

What are the responsibilities of a tutor who manages the property of a minor?

Dative Tutors

Here are some of the responsibilities of dative tutors:

• make a list of the property to be managed within sixty (60) days of the start of the tutorship
  
• provide a security deposit or take out insurance if the value of the property exceeds $25,000
  
• produce annual reports on how the property is managed
  
• produce a final report at the end of the tutorship
  
• obtain any advice or authorizations required by law

Legal Tutors (the parents)

If the value of their child’s property exceeds $25,000, they must do all the things listed above.

If the value of their child’s property is under $25,000, parents need only report to the child when he or she turns 18 on how they have managed the child’s property. While this report need not be as formal as when the property is worth over $25,000, it is still a good idea to keep a separate bank account for a child and a copy of any relevant supporting documents to give the child when he or she turns 18.

What are the powers of a tutor who manages the property of a minor?

A tutor’s powers are different depending on whether the tutorship is legal or dative.

• Legal Tutorship
  
  When the minor’s property is worth less than $25,000, the parents have the power to make all decisions about managing the property. They must make these decisions with care, honesty and in the child’s best interests..They are not allowed to use the child’s funds for their own personal needs. They can invest the child’s money, but only in low risk investments, such as savings bonds.
  
  When the minor’s property exceeds $25,000, things get more formal: a tutorship council is created. The council is usually made up of 3 people named by a group of relatives, people connected by marriage or civil union and friends. The role of this council is to oversee the actions of the tutors. Legal tutors (parents) cannot mortgage a minor’s property, sell valuable property belonging to the minor or borrow money without permission from the tutorship council.

• Dative Tutorship
  
  Dative tutors are always supervised by a 3-person tutorship council. Similar to legal tutors of a minor with property worth more than $25,000, dative tutors require the approval of the tutorship council to make certain decisions.

Are there certain kinds of property owned by a minor that the tutor does not manage?

Yes. It depends on where the property or money comes from.

The tutor does not manage some kinds of property given in a will or in circumstances that make another person the manager.

For example, a will might state that Nicolas, age 3, will inherit $25,000 to be managed by a foundation or a financial institution until he turns 18.

Also, at any age, a minor can manage, on his own, an allowance or salary from a job. Further, from age 14 and up, a minor is considered an adult with respect to his work, art or profession.

But there is an important exception to this rule: if a child earns a lot of money from a job, his parents can ask a court to decide the amount the child can manage on his own and the amount that should be managed by his parents.

What is the role of the Public Curator?

The Public Curator is a government agency that supervises the management of dative and legal tutors managing property worth more than $25,000.

When does tutorship end?

Tutorship of a minor ends automatically when the minor reaches 18, when he is fully emancipated, or he dies. “Full emancipation” is a legal process that gives a minor almost all the rights of an adult.

The tutor’s responsibilities can also end with the replacement of the tutor or the tutor’s death.

Parents can never choose to stop being tutors for their minor child: this is their duty as parents. However, a dative tutor (a tutor who takes the parents’ place) can resign for serious reasons if the court gives permission.

Finally, a dative or legal tutor can be removed by the court if the tutor does not carry out her responsibilities properly or becomes unable to act as tutor. There must, however, be serious grounds for removal. For example:

• the tutor cannot perform her duties (because of age, inability to act, a long absence, etc.)
  
• the tutor fails to carry out her legal duties and is harming the minor’s interests
  
• there were serious things wrong in the way the dative tutor was named

Does the tutorship of parents continue when an adult child is unable to take care of himself?

No. Tutorship to minors ends when the child turns 18. The law does not automatically require a tutor for adults who cannot take care of themselves.
However, the parents of a child who needs help can ask the court or a notary to put into place “protective supervision” for their child. This is a legal mechanism to protect vulnerable people.

For example, Sophie, who just turned 18, has a minor intellectual handicap. She can take care of herself and manage many aspects of her life, but still needs help with her finances, signing an apartment lease and other matters. Sophie’s parents could request protective supervision for their daughter.

For more information, read our Infosheet Protective Supervision  (http://www.educaloi.qc.ca/en/loi/senior_citizens/46/).

Useful Links :

1. Curateur public du Québec website  [http://www.curateur.gouv.qc.ca/cura/html/anglais/protecting/RPtutmina.html]