Protective supervision refers to the legal mechanisms which are set up to protect individuals who are vulnerable due to an incapacity. They are intended to ensure a person’s protection, the administration of his property, and the exercise of his civil rights.

The law provides for three different protective regimes, which vary depending on the degree of a person’s incapacity.

• Curatorship to persons of full age
  
  Curatorship is intended for individuals who have become completely and permanently unable to take care of themselves or to administer their property. It affords the highest degree of protection – the protected person retains very little autonomy.
  
  
• Tutorship to persons of full age
  
  Tutorship is set up when a person of full age is temporarily or partially unable to take care of himself or administer his property. The protected person retains a certain degree of autonomy.
  
  
• Advisers to persons of full age
  
  An adviser is appointed if a person has a very low-level or temporary incapacity. The adviser’s role is to advise and assist the protected person in the administration of his property. This regime offers the lowest degree of protection.

You should note that when a tutorship or curatorship is set up, it is possible to appoint two tutors or two curators: one to take care of the protected person and another to administer his property.

If the protected person is a minor, tutorship is the only regime that applies.

A request for protective supervision can be made by any person who shows a special interest, i.e., a person concerned for the incapacitated person's health and safety, or the proper administration of his property.

Often, such persons include spouses, close relatives, friends, volunteers who provide support to the person, neighbours, or the Public Curator. Finally, even the person himself can apply for protective supervision, if he fears that he is losing his faculties.

The application for the institution of protective supervision is made before a judge, a clerk of the Superior Court, or a notary.

In all cases, a medical and psychosocial assessment of the person who needs to be protected must be carried out. The person considered incapacitated must also be questioned to determine whether or not the application is justified, the kind of protective regime that will be needed, and the identity of the person who will represent or assist the incapacitated person. A representative can be questioned instead of the incapacitated person, if the incapacitated person’s condition makes this necessary.

The judge, clerk, or notary will also call together the incapacitated person’s parents, relatives, and friends to learn about their opinions and to form a tutorship or curatorship council. This council will be responsible for supervising the administration of the tutor or curator.

When made before a judge or clerk, the application must be made through a motion. In order to make an application before a notary, it is necessary to make an appointment with the notary, just like for the notary’s regular business. The notary must submit his report to a judge or clerk so that a judgement can be issued. The judge or clerk don’t have to follow the notary’s recommendations and can change the protective regime recommended by the notary.

The kind of application described above is considered “non-contentious,” which means that it is uncontested; this generally allows the application to be processed more quickly and informally in districts that allow it. However, if the application is contested before a clerk or notary, it must be presented before a judge and follow the usual steps for a contested case.

Yes. If a person does not wish to be under protective supervision, he can contest its institution. The judge, court clerk or notary receiving the application must always give the person an opportunity to be heard. If the person insists that he does not want to be under protective supervision, the file will be transferred to the court.

You should note that the person in question may choose to be represented by a lawyer.

Temporary measures do exist. While the proceeding to implement protective supervision is underway, some provisional measures can be taken to protect the person concerned from suffering any serious prejudice concerning his person or his property:

• the court may make a decision concerning the custody of the person;
  
• a person close to the incapacitated person or the Public Curator can, in emergency situations, perform any acts necessary for the maintenance of the property of the person concerned;
  
• the court can temporarily designate the Public Curator or another person responsible for performing a specific act or administering the person’s property.

If no relative or friend is available to take on this responsibility, the Public Curator can be appointed by the court to act as the person's legal representative (tutor or curator). If so, the Public Curator will have to look after the person within the limits of his mandate.

The Public Curator also automatically becomes the legal representative of a protected person if the individual previously appointed to that role dies or resigns. The Public Curator remains in that role up until someone else is appointed as tutor or curator.

If a relative or friend of the incapacitated person, the Public Curator, or any interested person believes the tutor, curator, or adviser is doing a poor job, he can ask the court to replace the tutor, curator, or adviser in question. Before getting to this point, the Public Curator can ask the representative of the incapacitated person to voluntarily commit to fixing the situation.

When the legal representation is assumed by the Public Curator, a relative or friend of the incapacitated person can submit a complaint to the Bureau des plaintes du Curateur public (complaint’s office of the Public Curator) or the Protecteur du citoyen (Quebec Ombudsman).

Yes, at any time. Once protective supervision is established, it can be reviewed if the incapacitated person’s health changes. Just like the initial application to institute protective supervision, the application for review must be made before a court or notary.

The situation of an incapacitated person must, in any case, be re-evaluated every three years if there is a tutorship or an adviser, and every five years if there was a curatorship, unless the court determined a different time period in the judgment.

The representative of the incapacitated person has the responsibility to ensure that the incapacitated person is re-evaluated when necessary. The director of the health establishment where the incapacitated person stays also has the duty to present a report to the court office (greffe) as soon as he observes a change in the incapacitated person’s health that will justify a removal or change in the protective regime.

Protective supervision usually ends when the protected person is deemed to no longer be incapable or upon his death.