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Tutorship to minors

Simon is eight years old. From the day he was born, his mother and father have been his legal tutors. Together, they ensure his physical well-being and administer his property. But what happens if Simon’s parents get into a car crash that claims both of their lives?

In this Infosheet, Éducaloi explains legal tutorship and dative tutorship of a minor.

What does tutorship to a minor entail?

Generally, a person becomes completely independent from his parents or tutor at the age of 18. From the moment you turn 18, you are free to exercise all of your civil rights (make donations, draw up a will, donate organs, etc.).

Before you are of full age, you are a minor, and as such, you have one or more tutors. Most of the time, your tutors are your parents. They are obliged to act in your best interest, in terms of your personal care as well as the care of your property and assets.

What are the two types of tutorship to a minor?

The law includes two types of tutorship:

• Legal tutorship
  
  Legal tutorship is the kind that is automatically conferred to the parents. They need not be appointed by the court. If one of the parents dies, tutorship automatically stays with the other parent. In principle, legal tutorship performed by parents is free of charge. But in the exceptional case where the administration of the minor’s goods become the parents’ main occupation, they can receive a payment determined by the court.
  
  
• Dative tutorship
  
  If both parents die, or if they are deprived of parental authority (when the court takes away a parents’ rights over their children because of poor conduct), a dative tutor is appointed. For more information about when parents are deprived of parental authority, consult the 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 entourage can assume the role of dative tutor, the Director of Youth Protection (DYP) is appointed as tutor to protect the person, and the Public Curator is appointed as tutor over the minor’s property.
  
  Parents can appoint a dative tutor in their will or through a declaration to the Public Curator. The person chosen to be a dative tutor may refuse the duty. In principle, dative tutors perform their duties for free. Bear in mind, however, that a minor can have two tutors, one to care for his personal well-being and another to care for his property. The tutor for the minor’s personal care must be a human being (an uncle, a sister, etc.). The tutor in charge of property need not be a physical person. It can be, for example, a company that specializes in investments.

What tasks must the tutor perform?

The law imposes obligations on dative tutors. Here are a few:

• take an inventory of the property to be administered within sixty (60) days from the day the tutorship is opened;
  
• provide a security deposit or take out insurance if the value of the property exceeds $ 25,000;
  
• produce annual accounts and reports;
  
• produce a final report at the end of the tutorship;
  
• obtain (from the tutorship council or the court) the advice and authorizations determined by the law.

Legal tutors (mother and father) do not have these obligations when the value of their child’s property does not exceed $ 25,000. If it does exceed
$ 25,000, the parents are liable to the same obligations as the dative tutor.

What powers does the tutor hold?

A tutor’s powers depend on the type of tutorship.

• Legal tutorship

When the minor’s property does not exceed $ 25,000, the parent tutors have the power to make all decisions concerning tutorship. They must make these decisions with care, diligence, honesty, and loyalty. They are not allowed to use the child’s funds for their own personal ends. They can invest the child’s money, but only in “presumed sound” investments, which are low risk investments such as savings bonds.

When the minor’s property does exceed $ 25,000, things get more formal: a tutorship council needs to be created. The role of this council is to oversee the actions of the tutors. The council is generally made up of three people appointed by a group of parents and/or friends. When a tutorship council exists, some actions cannot be taken solely by the tutors. As such, the legal tutors (parents) cannot mortgage the minor’s property, sell valuable goods of the minor, or borrow without authorization from the tutorship council.

• Dative tutorship

As soon as there is dative tutorship, a tutorship council is formed. It is made up of three people. Similar to the obligations of legal tutors of a minor with more than
$ 25,000 in property, dative tutors require the approval of a tutorship council when making certain decisions.

Is certain property owned by a minor not administered by his tutor?

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

Certain property falls outside of the tutor’s administration because it was bequeathed or given in circumstances that officially make another person the administrator.

For example, a will can state that Nicolas, age three, will inherit $ 25, 000, which will be managed by a foundation or a financial institution until he reaches the age of majority.

Regardless of age, a minor can alone manage his allowance, artist’s fees, salary, or business income. From age 14 on, a minor is considered an adult with respect to issues related to his art or profession.

There is an important exception to this principle. If a child earns substantial employment income, his parents can ask a court to determine the amount that the child can continue to manage on his own and the amount that should be administered by his parents.

What is the function of the Public Curator?

The Public Curator must oversee the management of all dative tutors and legal tutors that manage a patrimony worth more than $ 25,000.

How much do the services of the Public Curator cost?

Public Curator fees are paid from the minor’s patrimony. Services related to the personal protection of the minor are free; the Public Curator only charges for the management of property.

To obtain the complete price list, we suggest you consult the website of the Public Curator of Quebec  (http://www.curateur.gouv.qc.ca/cura/en/inaptitude/role/honoraires.html). Also, note that these fees are indexed on the first of April of every year.

When does the tutorship end?

Tutorship of a minor ends automatically when the minor reaches full age, with the full emancipation of the minor, or at his death.

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

Parents can never chose to resign tutorship of their minor child, as this is a parent’s obligation. However, a dative tutor (one who takes the parents’ place) can resign for serious reasons if the court authorizes it.

Finally, a dative or legal tutor can be removed by the court at anyone’s request if the tutor does not perform her obligations well or is incapable of being a tutor. There must, however, be serious grounds for removal. For example:

• the tutor cannot perform her duties (for reasons of age, incapacity, prolonged absence, etc.);
  
• the tutor does not respect her legal obligations and is harming the minor’s interests;
  
• there were serious irregularities in the process of appointing the tutor.

For less serious situations, for example if the tutor is able to manage the children’s money but she is not a very skilled manager, there are other mechanisms less severe than removal. For example, a tutorship council can be appointed to oversee the administration. This request must be made to the court.

Does the tutorship of the parents automatically continue when a child who is incapable of taking care of himself becomes an adult?

No. Tutorship to minors ends when the child becomes an adult. The law does not automatically open a protective regime for adults who cannot take care of themselves. However, the parents of a child of full age in need of protection can ask the clerk or a judge of the Superior Court, or a notary, to open a protective regime for their child.

For example, Sophie, who just turned 18, has a minor mental disability. Although she is able to take care of herself and to manage many aspects of her life, she still needs to be assisted with finances, administrative procedures, etc.

Sophie has recently told her parents that she wants to buy a motorcycle so that she can be just like her favourite comic strip character who always does stunts on her motorbike. Sophie’s parents know that they may not be able to cancel their daughter’s purchases, so they decide to try to open a protective regime for their daughter.

For more information, read our Infosheet called Instituting 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]