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Legal representation of an incapacitated person by the Public Curator

When a person of full age is deprived of his faculties, those closest to him normally become his legal representatives. These can include a spouse, brother, sister, parent, etc. But if none of these people can represent the incapacitated person, then the court appoints the Public Curator to represent him.

In this Infosheet, Éducaloi informs you about the duties of the Public Curator as tutor or curator to an incapacitated person, as well as the specific rules that apply to this duty.

Who is the Public Curator?

Every five years, the Quebec Government appoints a person to assume the role of Public Curator. One of the Public Curator’s main responsibilities is to protect the rights and property of minors and incapacitated persons of full age.

Under what circumstances will the Public Curator represent incapacitated persons of full age?

Normally, someone from the incapacitated person’s immediate entourage assumes the role of representative. But if no close relative can or wants to assume this role, the court can appoint the Public Curator to act as the incapacitated person’s legal representative. He will then be responsible for supervising, within the limits of his mandate, the person’s well-being and interests.

Or, if an incapacitated person’s private representative dies or resigns, the Public Curator automatically becomes the legal representative. The Public Curator assumes this responsibility until a new tutor or curator is appointed.

Depending on the situation or the degree of the person’s incapacity, the Public Curator’s role may be to legally represent the person in all matters concerning his person or his property. On the other hand, the Public Curator’s role may be limited to the administration of the incapacitated person’s property while another person will take care of the his physical and moral well-being.

What specific rules apply to the Public Curator when he exercises his duties as tutor or curator?

The specific rules regard:

• Custody of the person of full age

In principle, the Public Curator does not have custody of the person of full age. Another person or organization, such as a health centre generally assumes this responsibility. This person or organization has the power to consent to health services required by the state of health of the person of full age. Nevertheless, the Public Curator reserves the responsibility of protecting the person of full age.

• Administration of property

The Public Curator is responsible for preserving the property of the person of full age (his patrimony) and making it grow, but only through sound investments.

However, the law stipulates specific rules applicable to the administration of property by the Public Curator. For example, the law does not require the Public Curator to pay a security deposit to guarantee the proper performance of his administration. He still remains responsible for any transactions he makes.

Furthermore, specific rules enable the Public Curator to act without the judicial authorization normally required, notably in the following situations: the Public Curator can borrow the amount needed for maintaining a building using the property included in the person of full age’s patrimony as security; the Public Curator can have property partitioned, participate in the division or transact with it if the value of the concessions he makes does not exceed $5,000.

• The delegation of power

The Public Curator is responsible for many tutorships and curatorships in Quebec. To help the Public Curator maintain personal contact with the persons he represents, he delegates some of his powers to employees called officers who help him in his mission. These officers must, as far as possible, maintain personal relationships with the protected person, obtain his opinion, and keep him informed about decisions that affect him.

Who can ask that the Public Curator be replaced as the representative of an incapacitated person of full age?

One of the goals of protective supervision is to strengthen commitments among family members and relatives. The law therefore stipulates that when the Public Curator is the legal representative of an incapacitated person, any interested party can request that he be replaced based solely on the interest of the person of full age. The interested party need not show that the Public Curator was doing a poor job in order to request a replacement.

How long does the Public Curator’s responsibility last?

The duration of the Public Curator’s responsibility to the incapacitated person is indeterminate, meaning there is no fixed time limit. Essentially, the law stipulates that the Public Curator must undertake all the necessary steps to find a person who has a relationship (friend, family) with the incapacitated person to replace him.

When a Public Curator represents an incapacitated person of full age because the former private tutor or curator died or resigned, the Public Curator is only a temporary replacement. In this situation, the family and friends of the incapacitated person of full age must appoint a new tutor or curator.

Useful Links :

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